Can You Refuse to Work Without Protective Gear?

The Coronavirus Pandemic Is Forcing Workers to Make Difficult Choices

In the midst of the coronavirus pandemic, millions of workers throughout the US are being asked to make a difficult choice: forego a paycheck, or go to work and risk contracting coronavirus.

Personal protective equipment such as N-95 masks, gloves, and gowns are important tools in protecting workers from exposure to coronavirus. However, our nation is currently in the grip of a massive shortage in such equipment.

As a result, many workers—including healthcare workers at the front lines—are being asked to put their health at risk in the workplace.

So, if your employer does not provide you with protective gear—and refuses to let you bring your own to work—can you refuse to work under such conditions?

What OSHA Says About Working in Unsafe Conditions

We already have laws in the US to protect workers from unsafe conditions at work. Under OSHA regulations, you have the right to refuse to perform a task at work if all of these conditions are met:

• There is an imminent danger of injury or death present.
• You have asked your employer to eliminate the danger, and they haven’t.
• There isn’t time to request an OSHA inspection and let the correction proceed through the regular channels—the danger is imminent.

In general, your refusal to work has to be in good faith; i.e., you truly believe there is immediate danger. And it must pass the “reasonable person” test—in other words, a reasonable person would agree with you that the risk of injury or death is imminent.

Once you’ve decided to refuse work, you must take the following steps:

• Ask your employer—once again, if necessary—to eliminate the safety hazard or assign you to other work.
• Inform your employer that you won’t do the work until the safety hazard is corrected.
• Stay at the workplace until your employer orders you to leave.

If you follow all the steps and your complaint does indeed pass the “reasonable person” test, your employer is prohibited from retaliating against you for refusing to do dangerous work. If they do anyway, you must notify OSHA within 30 days.

How the Law Applies in the Coronavirus Pandemic

The rules and health guidelines, for both employees and the public, are constantly changing. But at the time of this writing, employers still do have the right to discipline employees who refuse to work without protective gear in most cases.

That’s because OSHA’s laws protecting employees who refuse to work in unsafe conditions hinge on whether the conditions present an immediate danger of injury or death.

As of now, the official consensus is that the prospect of catching coronavirus is not an “imminent danger” to employees unless they are directly working with infected patients.

Because of this, most employers are not being legally required to offer or even allow employees to wear surgical masks or respirators. It’s up to the employer’s discretion.

However, certain things complicate the situation. For instance, the CDC recently released guidance recommending people everywhere use simple cloth face coverings to protect themselves in public. This makes the case stronger for employees to provide some form of personal protective equipment to employees—although it’s not yet legally mandated.

In addition, certain scenarios have not yet been tested in court—such as healthcare workers being asked to intubate coronavirus patients without personal protective equipment, or workers with pre-existing conditions that make them vulnerable to the virus being asked to work in a facility with a documented outbreak.

As the legal landscape exists now, it’s frowned upon for your employer to refuse to provide you with personal protective gear or allow you to bring it from home, but legally they still can. However, once the dust settles and employees start to sue, it’s difficult to say how these scenarios will play out in court.

Talk to an Experienced Employment Lawyer in Philadelphia

Are you being asked to put your health and life on the line at work?

The rules and expectations in this area are constantly evolving due to changing recommendations about the coronavirus—but while the rules shift, workers on the front lines are suffering.

If you believe you’re being unfairly asked to risk your life and health at work, Murphy Law can help. Get in touch at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.