Nati Harnik/AP Photo
Workers process chickens at the Lincoln Premium Poultry plant in Fremont, Nebraska, December 2019.
Across America, workers compelled to work in dangerous conditions or in close contact with individuals who may be carriers of the coronavirus are protesting. On Monday, Instacart workers in multiple cities walked off the job demanding safety gear, sick leave benefits, and higher pay. They joined a diverse collection of transit, grocery, warehouse, and sanitation workers who’ve all taken job actions to pressure their employers to adopt measures that protect them from the hazards the pandemic presents.
Also on Monday, Speaker Nancy Pelosi and other leading House Democrats held a press call in which they recounted their efforts to create emergency workplace standards in the three bills that Congress has now enacted to deal with the crisis—and how Republicans blocked those standards every time. The Democrats vowed to make those standards the chief feature of the next bill.
Some employees have been able during this crisis to get employers to improve workplace safety. But many workers at businesses that have been designated as essential have not been successful. In Chicago, an infectious-disease nurse at Northwestern Memorial Hospital was fired after she refused to wear a surgical mask issued by the hospital and wore her own N95 mask instead and urged other nurses to do the same. She has since sued the hospital. Last Saturday, The Seattle Times reported that an emergency room doctor at a Bellingham, Washington, hospital was fired for protesting the lack of protections at his workplace. The media have reported numerous instances of threats of discharge made by hospitals in response to employee health–related grievances.
In Georgia, 50 workers at a Perdue chicken processing plant walked out on March 23 over health and safety concerns. Such protests carry their own risks, however, since employees generally are denied unemployment insurance benefits if they have been discharged “for cause” or voluntarily quit.
What, then, can workers do when they consider the viral health hazards at their jobsites too dangerous to be around? If they refuse to work, what rights and remedies do such employees have?
There are, in fact, some long-standing federal protections for workers who refuse to work because of hazardous conditions. That said, these provisions have not been employed or litigated significantly in the past. They include Section 502 of the Labor Management Relations Act of 1947 (the Taft-Hartley Act), and the Occupational Safety and Health Act of 1970 (which created the agency known as OSHA).
Taft-Hartley, of course, severely limited employees and unions from engaging in organizing and bargaining. Paradoxically, however, Taft-Hartley, while tightening limitations on strikes, also includes Section 502, which reads:
Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent … nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter.
Under this provision, if employees refuse to work because of what are “unusually dangerous conditions,” they may not be subjected to discharge or permanent replacement, as might otherwise be the case.
As for the 1970 act, it generally requires that covered employers must assure that their employees’ workplaces are free from hazards likely to cause death or serious physical harm to those workers. These include harmful physical agents, including viruses. That the coronavirus and COVID-19 are new does not mean that employers have no duty to protect employees from them in every possible way. Further, in 1980 the United States Supreme Court in Whirlpool v. Marshall upheld a Department of Labor OSHA Regulation, 29 C.F.R. Sec. 1977.12(b)(2), that protects employees from discrimination for refusing to perform work under dangerous conditions. It stipulates as follows:
[O]ccasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.
However, there is no private right of legal action available under the act, and the Occupational Safety and Health Administration has a poor record of enforcement. Nevertheless, the thrust of the OSHA regulations may be useful in other proceedings like arbitration, and unemployment and workers’ compensation. President Trump’s appointees to federal agencies, and the conservatives who dominate the federal courts, cannot be counted upon to uphold workers’ rights, of course, but that said, both Section 502 of Taft-Hartley and the Court’s ruling in Whirlpool v. Marshall appear to have been written precisely for moments like these.
Shoring up OSHA standards was the topic to which House Democrats addressed themselves on Monday. After Speaker Pelosi noted that legislation requiring OSHA to set emergency workplace standards “was blocked three times” by the Senate and the Trump administration, House Education and Labor Committee Chair Bobby Scott (D-VA) said, “The next package must include a requirement that OSHA issue an Emergency Temporary Standard that requires employers to implement protections for at-risk workers” in health care. As well, he continued, “we intend to expand the scope of this legislation to protect other at-risk workers, including TSA agents, direct care workers, police officers, pharmacists, grocery store workers,” and others.
Informational documents that the federal government has issued in response to the coronavirus provide some guidance for what emergency standards should look like. The U.S. Department of Labor and the Department of Health and Human Services jointly have issued “Guidance on Preparing Workplaces for COVID-19.” And the Centers for Disease Control and Prevention (CDC) has issued “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19),” as well as a release entitled “Information for Health Professionals.”
As employment disputes occur during the current health crisis, issues under the foregoing and other provisions of federal and state law can be expected to arise. We must hope that the outcomes of such disputes will favor the legitimate expectations of employees that their rights to and on their jobs, as well as their health and their family’s needs, will be considered and protected during these difficult times.
