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Despite expert warnings, several states are moving forward with reopening plans. What options do employees have if they feel their workplace is unsafe? This issue became more urgent after the Department of Labor declared that workers who decline to return to work due to general safety concerns will no longer qualify for unemployment benefits.
It’s crucial to recognize that labor protections differ significantly based on your location, occupation, and employer. Consider this a general overview of your rights as an employee, with the understanding that consulting a legal expert is advisable for specific guidance tailored to your situation.
Sadly, even under normal circumstances, the U.S. lags behind most developed nations in terms of worker protections. This includes inadequate requirements for layoff notices, limited unemployment benefits, and diminished collective bargaining rights for unions.
This situation leaves employees particularly exposed when dealing with workplace challenges during a pandemic and an economic downturn that has resulted in widespread unemployment.
“Employers hold the advantage,” explains Jennifer Glass, a sociology professor at the University of Texas at Austin, whose research focuses on work and family dynamics.
Attend work first, then advocate for safety protocols
Declining to return to work is complex. Kathryn Youker, an attorney with Texas RioGrande Legal Aid, which provides free legal assistance to low-income Texans, suggests that for many workers, the optimal approach is to report to work. If safety standards are not being met, they should formally request accommodations from their employer in writing.
The act of attending work and subsequently requesting accommodations provides workers with a degree of legal protection. “Consulting an attorney before refusing to work is advisable,” Youker advises.
In general, employees who decline to report to work must prove they have valid reasons to believe there is an imminent and significant danger to their well-being. While a pandemic is a valid safety concern, this specific justification has not yet been legally tested in court.
“A general sense of discomfort is unlikely to qualify as valid grounds for resignation,” states Anne Carder, managing attorney of the General Law Unit at Atlanta Legal Aid Society, Inc., an organization providing civil legal support to low-income individuals.
Submit your initial request to your employer in written form
If an employee perceives their workplace as unsafe, their first step should be to formally address their concerns with their employer.
“Employees should always prioritize asking their employers to address safety concerns first,” notes Youker, emphasizing the importance of documenting these requests in writing to create a clear record of what was asked and when.
Before submitting your requests, it’s wise to familiarize yourself with the safety standards applicable to your industry, both under normal conditions and those specific to COVID-19. This knowledge can strengthen your case. A useful resource is the Center for Occupational Safety and Health’s website, which provides COVID-19 safety guidelines tailored to various professions, including detailed recommendations for grocery store employees, healthcare workers, seafood industry staff, warehouse personnel, and others.
Ideally, submitting such a request would prompt employers to implement necessary changes to ensure employee safety. Unfortunately, reality often falls short, as many workers face the difficult choice between risking virus exposure or supporting their families.
Requesting safety measures also carries the risk of retaliation. While some legal protections exist, this remains a challenging option for workers who cannot afford to lose income.
In general, workers can seek protection through a patchwork of labor laws that vary based on their location, occupation, whether they belong to a protected class, and the company they work for.
“Depending on the situation, employees who feel they are working in unsafe conditions may have legal recourse under the Occupational Safety and Health Act, the National Labor Relations Act, the Americans with Disabilities Act, and other local, state, and federal laws,” explains Nandini Sane, a labor and employment attorney at Cozen O’Connor.
Strength in numbers for enhanced protection
When multiple workers jointly request safety-related accommodations, they gain additional legal safeguards. While this doesn’t apply universally—farmworkers and supervisors, for instance, are exceptions—group requests generally provide extra protections under the National Labor Relations Act (NLRA).
For instance, if you and your colleagues collectively ask for masks and gloves for everyone at the workplace, this strengthens your legal standing compared to an individual request. This is due to the NLRA’s provisions that safeguard employees’ rights to organize and engage in collective bargaining.
Contact OSHA or your local public health department
If your requests for safety accommodations go unaddressed, the next step is to file a formal complaint with the Occupational Safety and Health Administration (OSHA) or your local health department. Complaints can be submitted anonymously and offer additional safeguards against retaliation, independent of any potential workplace inspections OSHA may conduct.
However, OSHA has been notably inactive during the pandemic, recently stating that, aside from inspecting high-risk environments like healthcare and emergency response, they would not conduct workplace inspections, instead delegating enforcement to employers.
As Glass notes regarding OSHA, “We are at the culmination of a thirty-year trend of deregulation and weak enforcement.” She likens leaving workplace enforcement to employers to “expecting a two-year-old to resist an open candy jar.”
Alternatively, you can contact your local public health department and file a complaint with them, as this may provide additional opportunities to enhance workplace safety. Depending on your location, this could be your city or state health department.
If you feel compelled to choose between endangering your health and supporting your family, it’s crucial to understand your rights, however limited they may be. This includes consulting legal experts and familiarizing yourself with employment laws relevant to your situation.
“A worker’s greatest safeguard is their value to their employer,” Glass remarks. While this may offer little solace during an economic downturn fueled by a pandemic, it’s important to remember that companies thrive solely due to the efforts of their employees.
