As an employee in California, do you have the legal right to refuse to return to your on-site job because of COVID-19 fears? The answer: Maybe.
Whether you are an “essential worker” or a non-essential worker, if you choose not to return to work out of fear of contracting the coronavirus, you may have that right, legally speaking.
Employees’ Legal Rights
To begin, your employer should utilize a fair, consistent and nondiscriminatory selection process to determine which employees need to return to the office or workplace. This process could be based on a range of well-documented factors, including tenure or an assessment of the organization’s future needs and who is best qualified to meet those needs. These reasons must facially neutral and not penalize a protected class. If you believe you have been the victim of workplace discrimination for any reason, reach out to an employment lawyer immediately.
Under the Occupational Safety and Health (OSHA), employees can refuse to work if they reasonably believe they are in imminent danger. The employee must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period for this protection to apply. As it pertains to COVID-19, the worker could have a specific fear of infection that is based on fact and/ or the employer cannot address the employee’s specific fear in a manner designed to ensure a safe working environment.
These are unprecedented times and California employers should make best efforts to accommodate employees who request altered worksite arrangements, remote work or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19.
The EEOC’s guidance on COVID-19 and the Americans with Disabilities Act (ADA) notes that accommodations may include changes to the work environment to reduce contact with others, such as using Plexiglas separators or other barriers between workstations.
When You Want to Return to Work
If you want to return to work, and your employer is giving you the run-around, you may also be able to bring a legal claim. Some local jurisdictions are enacting laws to protect recently laid-off workers. For example, the City of Los Angeles recently enacted an ordinance requiring employers in certain industries that generated more than $5 million in business in 2019 to rehire laid-off workers (giving priority to those with the most seniority) before they can hire any new employees.
To discuss your specific situation with an experienced employment law attorney,