Right to Refuse to Work or Patient Assignment Under OSHA
The federal Occupational Safety and Health Act (OSHA) provides a measure of protection for refusing to work in hazardous conditions. OSHA regulations allow employees to refuse to work where there is the possibility of serious injury or death arising from hazardous conditions at the workplace:
...occasions 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.
29 CFR 1977.12(b)(2).
Thus, in the dire case where a social worker has a good faith belief that a specific patient assignment will cause imminent death or serious injury, he or she cannot be retaliated against for a refusal to expose oneself to the dangerous condition. Note that this protection only applies, however, if the employee has asked the employer to correct the dangerous condition. Where possible, the social worker should immediately seek correction of the dangerous condition from the employer and document this. Moreover, where an employer is not providing adequate personal protective equipment (PPE), employees should likewise request it. If the employer refuses to provide it, and employees reasonably believes they will contract COVID-19 without it, they are likely protected from retaliation if they refuse to come to work until the appropriate PPE has been provided. Obviously, refusing an assignment is a drastic measure that could result in termination, particularly in the context of the pandemic. If a dire safety situation were to arise, social workers should to the extent practicable seek guidance from an attorney as soon as possible to protect their safety and their job.
If a social worker has a respiratory condition or other health issue that leaves the social worker with a compromised immune system, they may be considered a “disabled” under the federal Americans with Disabilities Act (ADA) or the corresponding state law. Employers must provide disabled employees with a reasonable accommodation that allows employees to perform the essential job functions of their jobs. This almost certainly includes accommodations that allow an employee to perform their job without worsening their underlying disability. At a minimum, social workers would have a very strong case to take paid or unpaid leave from work as a reasonable accommodation for their disability.
A disabled social worker may also request to continue working but not to care for COVID-19 patients. If there are other social workers scheduled who can take care of COVID-19 patients, it could well be that it is a reasonable accommodation for management to ask those social workers to care for COVID-19 patients. However, if the social worker with the disabling condition is the only scheduled social worker able to care for that patient, allowing the social worker to work but to take a different patient assignment would likely constitute an “undue business hardship” on the employer. If a requested accommodation results in an undue business hardship, the employee can deny the requested accommodation.
Learn more about the ADA and COVID-19
Unfortunately, social workers who do not want to care for COVID-19 patients due to a family member having a pre-existing condition that places the family member at greater risk of contracting COVID-19 are likely not protected under the ADA. However, they can request leave from the employer. Further, some employment contracts may contain provisions that allow for such leaves and may state that management cannot “unreasonably deny” them.
Please note that an employer may treat a refusal to accept an assignment as insubordination punishable by discipline or discharge. Social workers without a collective bargaining agreement (union contract) are subject to the provisions of their state employment law. Social workers with a collective bargaining agreement who refuse to accept certain assignments may have a strong argument that the employer lacked just cause or a lawful basis to impose discipline, if the employee can show that they had a genuine and reasonable belief that to perform those work duties would put them at risk of contracting COVID-19. But they do so at their own risk, particularly during the pandemic.