Add this monkey wrench to the list of things an employer has to wrestle with as stay-at-home and shutdown orders are lifted: Can an employee, fearful of contracting coronavirus, refuse to return to work?

If that employee has not yet stepped foot on the jobsite, the short answer is no. Employers still hold the upper hand. According to the U.S. Occupational Health and Safety Administration (OSHA), an employee cannot refuse to work because of a potentially unsafe condition in the workplace. Fear of contracting coronavirus is also not a covered disability under another workplace law, the Americans with Disabilities Act (ADA).

Even so, employers should refrain from immediately seeking to discipline a reluctant employee, said Kevin Griffith, a shareholder at the firm Littler and co-chair of its Whistleblowing, Compliance and Investigations group.

Especially during a pandemic, there should be a lot of room for negotiation. We are all in unchartered territory here. Panic is sparked by fear of the unknown. The wrong move is to ignore or downplay employee safety concerns, Griffith said.

“My advice to both sides is to encourage patience and listening,” he said. “We have entered a new universe of workplace policies and expectations. Employers are rushing to comply with state orders, many of which are being written very quickly and very ambiguously. We are all rushing to understand the new protocols.”

“There are two legitimate positions here,” Griffith continued. “You’ve got an employee saying you cannot guarantee me a safe environment from COVID-19. And you’ve got an employer saying we’ve done everything we can do to make it as safe as we possibly can.”

Employees have been complaining to OSHA about employers not doing enough to protect them from infection at work. As of Wednesday, more than 13,600 OSHA complaints and referrals related to COVID-19 had been filed nationwide, according to the Boston Globe. About half of those cases had been closed and none had resulted in citations or penalties, OSHA officials said.

The AFL-CIO filed a federal lawsuit against OSHA Monday, urging the agency and Trump Administration to set “an emergency temporary standard” because it has not responded to thousands of complaints by workers that they are being unnecessarily exposed to coronavirus infections.

“It’s truly a sad day in America when working people must sue the organization tasked with protecting our health and safety,” said AFL-CIO President Richard Trumka, in a press release. “But we’ve been left no choice. Millions are infected and nearly 90,000 have died, so it’s beyond urgent that action is taken to protect workers who risk our lives daily to respond to this public health emergency. If the Trump administration refuses to act, we must compel them to.”

Some employees could claim contracting coronavirus has exacerbated an underlying condition, which could push them into a covered category under the ADA. In most cases, they’d have to show they already recovered from a coronavirus infection. Fear of contracting coronavirus would only be a valid condition not to return to work if they have a pre-existing mental disorder (e.g., anxiety). Even then, the ADA says covered employees should return to work as long as employers work out reasonable accommodations.

Leading up to the return to work, employers should be clearly stating what they are doing to make the workplace safe, said Mark Neuberger, an employment attorney with Foley & Lardner.

“You have to build trust and confidence with your employees,” he said. Under guidelines set by OSHA, employers have a general duty to provide a safe and healthy work environment. What exactly that means is still unclear during this pandemic.

“I think employers will have to be a bit more flexible in their demands,” Neuberger said. “There is nothing to gain by forcing an unreasonably fearful employee back to work. Firing people, or forcing people back who are uncomfortable, is bad for morale. If they’ve been working from home, what’s the harm in stalling a little longer?”

According to OSHA, for an employee to refuse to return to work, the following criteria must be met:

  1. Employee has asked the employer to eliminate a hazard in the workplace, but the employer has failed or refused to do so;
  2. Employee refused to work in “good faith” due to the belief that an imminent danger exists;
  3. A “reasonable” person would agree there is a “real danger” of death or serious injury; and
  4. There is no time to correct the hazard through appropriate channels, like an OSHA inspection.

“Certainly, the ‘reasonable’ element of the test makes this a fact-intensive inquiry. What is ‘reasonable’ in this crazy COVID-19 world?” asked a recent blog post on the topic by the law firm Foley & Lardner. “An employer can help OSHA answer this question with the right information and documentation.”

Employers can likely stave off a disruptive OSHA inspection if they implement steps recommended by the agency and provide documentation that those steps were implemented.

“Simply put, it is imperative that employers demonstrate their good faith efforts to reduce or eliminate COVID-19 hazards in the workplace,” the blog said. “Contemporaneous documentation and implementation of these efforts is the key to demonstrating why it is unreasonable for an employee to refuse to return to work.”