On April 20, 2020, Tom Strong was quoted in Part B News regarding the legal basis for medical staff declining to work because of concerns about catching COVID-19. If your employees, including physicians and other healthcare professionals, choose not to work, they may be able to make a case for it, says Strong.
One possible path is occupational safety and health law as administered by the U.S. Occupational Safety and Health Administration (OSHA). “Essentially that requires that a refusal to work is made in good faith — that is, the employee believes an imminent danger exists and a reasonable person can expect death or serious injury to result, and that the organization has insufficient time to correct via normal channels,” Strong says.
Another might be the Americans with Disabilities Act (ADA). “The EEOC [Equal Employment Opportunity Commission] believes that if a person has an underlying condition, such as a disability, that creates an enhanced risk for the worker with regard to the virus, or if they become positive, the employer has a responsibility to try and provide a reasonable accommodation for that worker,” Strong explains. “That may include temporary job restructuring, transfers, modified work schedules [or] performing some job functions off site.”
Whether a physician or nurse could make these arguments is debatable. “You could argue that the good faith belief would be higher for a healthcare professional” than for, say, a shop clerk, Strong says. “However, ultimately it also needs to be subjectively reasonable in either case.” As an employer, he adds, “you need to run through a legal analysis with regard to the employment situation.”