During an influenza pandemic, can a healthy employee refuse to come to work, travel, or perform other job duties because of a belief that by doing so, he or she would be at an increased risk of catching pandemic influenza?
Category: Human Resource Policies and Pandemic Planning Workplace Questions
Sub-Category: Refusal to Work
Answer:
The circumstances under which employees have a right to refuse to work are very limited. Refusing to do a job because of potentially unsafe workplace conditions is not ordinarily an employee right under the Occupational Safety and Health Act (OSH Act). (A union contract or state law may, however, provide for such rights.) Employees may refuse an assignment only if: (1) they reasonably believe that doing the work would put them in serious and immediate danger; (2) they have asked their employer to fix the hazard; (3) there is no time to call the Department of Labor’s Occupational Safety and Health Administration (OSHA); and (4) there is no other way to do the job safely. Employees are not protected for simply walking off the job.
An employer can impose disciplinary action for refusing to work. However, employees do have the right to refuse to do a job if they believe in good faith that they are exposed to an imminent danger. "Good faith" means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.
In addition, employers should be aware that an employee’s inability to attend work or perform certain duties could be related to a disability. In this instance, the employer may need to consider the implications of its actions under the Americans with Disabilities Act1 before proceeding. For example, if an employee with a disability could safely perform the essential functions of the job with a reasonable accommodation (e.g., telework, changes in shift times), then an employer would need to provide the accommodation, in lieu of termination, unless it would pose an undue hardship. (See the U.S. Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act for additional information.)
We would encourage employers to prepare a plan of action specific to your workplace. As a practical matter, employers will likely want to be flexible regarding attendance during a pandemic. It would also be prudent to notify employees and, if applicable, their bargaining unit representatives about decisions made at the earliest feasible time.
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1The EEOC enforces Title I of the ADA. The ADA’s provisions in regards to disability-related inquiries, medical examinations, and confidentiality apply to all applicants and employees of covered employers, regardless of whether those individuals have disabilities, as defined by the ADA. By contrast, other ADA requirements apply only if an applicant or an employee is an individual with a disability under the ADA.
It cannot be definitively established in advance, however, whether a future pandemic influenza would rise to the level of a disability under the ADA. Therefore, this answer provides guidance for employers that would comport with the ADA even if a future pandemic illness was found to be an ADA disability.
Note: As an overall matter, employers should be guided in their relationship with their employees not only by federal employment law, but by their own employee handbooks, manuals, and contracts (including bargaining agreements), and by any applicable state or local laws.
Not all of the employment laws referenced apply to all employers or all employees, particularly state and local government agencies. For information on whether a particular employer or employee is covered by a law, please use the links provided for more detailed information. This information is not intended for federal agencies or federal employees -- they should contact the U.S. Office of Personnel Management (OPM) for guidance.
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Last Updated: 01/24/2008
