The head of each federal agency “must assure safe and healthful working conditions for his/her employees.” 29 C.F.R. § 1960.1(g). OSHA also requires that, “The head of each agency shall furnish to each employee employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 C.F.R. § 1960.8(a). Further, Congress requires that:

The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his [or her] agency, encourage safe practices, and eliminate work hazards and health risks.
5 U.S.C. § 7902(d).

Congress requires that federal agencies comply with specific OSHA rules and regulations, but OSHA has not adopted a specific standard to protect workers from infections. Through Section 19 of the OSH Act (29 U.S.C. § 668) and Executive Order 12196 (February 26, 1980), agencies are supposed to include representatives of their staff unions in making their safety programs.

The COVID-19 pandemic is so widely known that it would be untenable for any federal official to say that it is “unrecognized.”

Yes. The head of each agency shall acquire, maintain, and require the use of approved personal protective equipment, approved safety equipment, and other devices necessary to protect employees. 29 C.F.R. § 1960.8(d). Federal agencies cannot require employees to pay for their own PPE, and they must pay for an employee’s time put on and take off specialized PPE required for the safe performance of their duties.

You can engage in any lawful activity to disclose your concerns or participate in proceedings. 5 U.S.C. § 2302(b)(8) and (9). You can report it to your supervisor or to your agency’s “Designated Agency Safety and Health Official.” Every federal agency is required to have one. 29 C.F.R. § 1960.6(a). You can report the violation to the agency Inspector General, the Office of Special Counsel, or to any member of Congress. You can report it to a union, or to the media.

Depends. If going to work would necessarily lead to a violation of a law, rule or regulation, then Congress protects the employee’s decision to refuse to obey an order to come to work. 5 U.S.C. § 2302(b)(9)(D). A judge could eventually decide if the employee had a reasonable belief that coming to work would violate a law, rule or regulation.

Those federal employees refusing to comply with unsafe orders might point to 5 U.S.C. § 7902(d), 29 C.F.R. § 1960.1(g) or C.F.R. § 1960.8(a) as laws that the Agency would be violating if they direct an employee to work under unsafe circumstances. However, this application of 5 U.S.C. § 2302(b)(9)(D) to protect a refusal to work on grounds that it is unsafe is untested.

Outside of the protection for whistleblowers for refusing to violate a law, rule or regulation, judges typically require evidence of a high probability that following an order would result in death or serious physical injury to support an employee’s refusal to work on grounds that it is unsafe.

Yes. The Whistleblower Protection Act (WPA) prohibits retaliation for disclosing any violation of a law, rule or regulation. It also protects disclosures of “a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8).

No, but you may want to. To prevail in a whistleblower retaliation claim, the employee typically has to show that the decision-maker knows about the protected activity. Whistleblowers who choose to make disclosures anonymously are trying to avoid having their boss find out. If the boss finds out anyway, but will not admit finding out, then the employee may have a difficult time proving that the decision-maker had knowledge of the protected activity. For this reason, some whistleblowers choose to make a “revealment” of their protected activity. Union organizers used to send employers a letter disclosing their organizing activity. If the boss chose to fire them right away, they would have a strong case of retaliation. Nowadays, a simple email saying, “Hey, I just wanted to give you a heads up that I reported your violation of our health and safety rights to the Inspector General,” will suffice. Be sure to keep a copy of any revealment email at home.

No. Judges at the MSPB and the Federal Circuit have denied claims of protected activity by saying that the concern about public health and safety was not “substantial” or “specific.” Today, judges can deny protection by saying that the employee did not have an objectively reasonable belief in the illegality, raised the concern in an unreasonable manner, or raised a violation committed by someone who is not a federal employee.

In the past, judges rejected claims when whistleblowers reported the violation to the official committing the violation, disclosed information that had already been disclosed, had a bad motive for the disclosure, failed to disclose in writing or when off duty, or took too long to disclose. In the 2012 Whistleblower Protection Enhancement Act (WPEA), Congress prohibited the use of any of these former reasons to dismiss whistleblower claims. 5 U.S.C. § 2302(f).

“Participation” claims typically have stronger protections than “disclosure” claims. Employees who file or participate in official proceedings about retaliation have exceptionally broad protection. They are not required to show that they had a “reasonable belief,” or that their safety concerns were “substantial” or “specific.” Federal employees have “participation” claims when they file any appeal, complaint, or grievance about whistleblower retaliation, when they testify or assist other employees in their complaints, or when they cooperate with or make any disclosure to the Inspector General, the Office of Special Counsel (OSC), or “any other component responsible for internal investigation or review.” 5 U.S.C. § 2302(b)(9)(A)(i), (B) and (C). Employees are also protected when they refuse to violate a law, rule or regulation, but they must have a reasonable belief that the order they are refusing to obey is a violation. 5 U.S.C. § 2302(b)(9)(D).

The sooner the better. A lawyer can help federal employees raise their concerns in a manner that is more likely to win protected status. A lawyer can help a client choose the most effective avenues for relief, document their protected activity, the decision-maker’s knowledge of that protected activity, and preserve evidence that will be useful in winning a case later.

Generally speaking, there are regulations which require agencies to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 C.F.R. § 1960.8(a). The regulations also require agencies to “acquire, maintain, and require the use of approved personal protective equipment, approved safety equipment, and other devices necessary to protect employees.”

If you believe your agency has violated these regulations and you are interested in reporting the violations, there are a number of options, including reporting violations to your agency’s Inspector General, the Office of Special Counsel, or a member of Congress.

Unfortunately, at this time, not every employee is entitled to telework.

 

In its February 7, 2020 memo and attached Coronavirus memo, OPM acknowledged that telework is “a critical tool during emergency situations.” OPM has also strongly encouraged agencies to maintain a viable telework-ready workforce. In March, OPM went a step further and directed agencies to immediately review their current Continuation of Operation (COOP) plans to ensure that telework has been fully incorporated and that as many employees as possible have been identified as telework employees in the plan, and are telework capable (or “telework ready”). The federal government as a whole has not, however, mandated that any number of employees be permitted to telework. More importantly, there is not currently a clear remedy for employees who, because of childcare or who are otherwise healthy but want to mitigate exposure to COVID-19, have been denied telework. It is important to check the policies of your specific agency and, where applicable, your collective bargaining agreement for any additional options.

There are some circumstances where an employer may be required to permit an employee to telework if the employee’s job can be performed from home. For example, the EEOC recently confirmed that qualified employees with a disability which puts them at a higher risk for becoming severely ill if they contract COVID-19 are entitled to a reasonable accommodation. If telework is reasonable and is not an undue hardship, the employer must consider it. (The employer may reject telework and grant a different accommodation only if it satisfies the same ends as the request.). Another situation where an employee may be entitled to telework is a pregnant employee who has been medically advised to remain out of the workplace. It may be more difficult for an agency to deny pregnant employees telework if other employees with no restrictions or similar restrictions are permitted to telework. Finally, as with all employment decisions, employers may not deny telework because of an employee’s sex, race, age, religion, national origin, or disability.

The rights and responsibilities of employers and employees are constantly changing in this unprecedented time. Please keep an eye on our website for resources that may affect you.

It depends. According to CDC guidelines, “critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” CDC guidelines also recommend that essential workers who have been exposed take their temperatures before work, wear a face mask at all times, and practice social distancing in the workplace as work duties permit. To the extent an employer fails to provide a face mask, requiring an essential employee to come to work without that protective equipment may violate CDC guidelines. Depending on the circumstances, refusing to go to work without such protection may be protected under § 2302(b)(9)(D).

A federal employee may refuse an employer’s order to work if there are rules in place prohibiting the return to work after coronavirus exposure. As our FAQ points out, if going to work would necessarily constitute or lead to a violation of a law, rule or regulation, then Congress protects the decision to refuse to obey an order to come to work. See 5 U.S.C. § 2302(b)(9)(D). If a federal employer takes an adverse action in response to the refusal, the employee can appeal the decision to the MSPB, or file a complaint to OSC (but not both). Ultimately, an MSPB administrative judge would decide if the employee had a reasonable belief that coming to work would violate a law, rule, or regulation.

Those federal employees refusing to comply with unsafe orders might argue that the Agency’s order to report to work under these circumstances violates 5 U.S.C. § 7902(d), 29 C.F.R. § 1960.1(g) or C.F.R. § 1960.8(a). However, this application of 5 U.S.C. § 2302(b)(9)(D) to protect a refusal to work on grounds that it is unsafe is untested.

Outside of the protection for employees who disclose violations of a law, rule or regulation, judges typically require evidence of a high probability that following an order would result in death or serious physical injury to support an employee’s refusal to work on grounds that it is unsafe.

In addition to the CDC, every state, including D.C., has issued public health emergency declarations. While there may be some overlap among different state responses, each state is unique in what it requires and what protections they afford, so it is important to know what rules are in effect in your area. If going to work would violate a state law, rule, or regulation where you work, then you may also be protected for refusing to go to work in violation of that law. See 5 U.S.C. § 2302(b)(9)(D). Again, thus far this protection has not been tested.

I am an employee who believes that my workplace is not safe. Can I refuse to go to work if I believe that I will be infected with COVID-19 if I report to work?

It depends.  There are a few possible options available to employees who are concerned about reporting to work in a potentially unsafe environment:

1. Potential Grounds for Refusal

For federal employees, a refusal to work may be protected if going to work would necessarily constitute or lead to a violation of a law, rule or regulation.  The Whistleblower Protection Enhancement Act (WPEA) protects an employee’s decision to refuse to obey an order to come to work under these circumstances.  See 5 U.S.C. § 2302(b)(9)(D).  However, while certain refusals may be protected according to the WPEA, employers might still take unlawful actions in response.  If an employee refuses to work and faces an adverse action because of that decision, the employee would have to file a claim to protect their rights and an MSPB Administrative Judge would eventually decide whether the employee had a reasonable belief that coming to work would violate a law, rule, or regulation.

Those federal employees refusing to comply with unsafe orders might argue that the Agency’s order to report to work under these circumstances violates 5 U.S.C. § 7902(d), 29 C.F.R. § 1960.1(g) or C.F.R. § 1960.8(a).  However, this application of 5 U.S.C. § 2302(b)(9)(D) to protect a refusal to work on grounds that it is unsafe is untested.

Outside of the protection for employees who disclose violations of law, rule, or regulation, judges typically require evidence of a high probability that following an order would result in death or serious physical injury to support an employee’s refusal to work on grounds that it is unsafe.  In these extraordinary times, one would hope that the toll of over 70,000 American deaths from COVID-19 would support this reasonable concern.

 

2. File an OSHA complaint:

Private sector employers have a general duty to maintain a workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” This is called the “General Duty Clause” and is part of the OSH Act of 1970.

Congress did not impose this General Duty Clause on federal agencies.  Instead, it requires federal agencies to comply with OSHA’s specific safety standards adopted through regulations. Section 19 of the OSH Act (29 U.S.C. § 668). OSHA has not adopted a specific safety standard to protect employees from infectious diseases.

Congress imposed separate general safety standards for federal agencies at 5 U.S.C. § 7902(d), but this statute is not enforced by OSHA. See also, 29 C.F.R. § 1960.1(g) or C.F.R. § 1960.8(a).

If private sector employees believe their working conditions are unsafe, they may file a complaint with OSHA at any time. This can be a slow process, however, as the time it can take OSHA to inspect a workplace varies. Federal employees making a workplace safety complaint may also wish to submit their complaints to OSC or the Inspector General so that they will be protected from retaliation under 5 U.S.C. § 2302(b)(9)(C).

However, an employee’s right to refuse to perform work is protected if all of the following are met:

1. Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
2. You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists;
3. A reasonable person would agree that there is a real danger of death or serious injury; and
4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

See https://www.osha.gov/right-to-refuse.html.

 

3. Disabled Employees at High Risk: Reasonable Accommodation Request

The EEOC recently issued guidance that if an employee has a disability that puts her/him/them at greater risk of severe illness if the employee contracts COVID-19, and that employee requests a reasonable accommodation to limit exposure, the employer must treat this as a standard request for a reasonable accommodation and take all appropriate steps. Employers are not required to provide special accommodations, such as telework, to employees who are high-risk solely because of their age.  Furthermore, an employee with a disability is not necessarily entitled to telework, and an employer who permits employees to telework due to the pandemic can consider:

• Whether the employee already has mechanisms in place at home that meet the same needs;
• Whether the request would be an undue hardship in this context (including given the limited nature of the telework arrangement); and
• Whether there are constraints on the availability of any needed resource.

On March 27, 2020, the EEOC answered the public’s questions regarding EEO laws and COVID-19.  All of the EEOC’s answers also apply to federal employees. You can find more information on our firm’s website at: https://kcnfdc.com/blog/ask-the-eeoc-eeoc-covid-19-answers-in-a-nutshell/

 

4. Consult State Laws

Finally, depending on the state in which the employee works, state laws may provide other protections for private sector and state employees.

A “disability” under the Americans with Disabilities Act, is a medical condition that substantially limits one or more major life activities, such as standing, breathing, walking, etc. You can request a reasonable accommodation to help minimize your risk of catching COVID-19 in the workplace and/or during your commute.

No. Employees with a disability that makes them more likely to become severely ill if they become infected with COVID-19 are entitled to a reasonable accommodation to minimize the risk of infection.

A reasonable accommodation is:

• a workplace adjustment (which may also relate to an employee’s commute);
• for a qualified employee with a disability (e., an employee who possesses the skills or qualifications necessary to perform the duties of the position);
• which assists the employee in performing the essential functions of their position;
• and which is not an undue hardship on the employer (an undue hardship is a modification whose cost or other requirements would pose a severe financial or organizational burden).

Requesting a reasonable accommodation is easy.

First, depending on the size of your organization, there may be a specific person designated to receive and process these requests. If you aren’t sure, ask Human Resources. If there is not a designated person, ask the person in your chain of command you feel most comfortable with. The request may be as simple as “I have a condition which makes me more likely to become severely ill if I catch COVID-19. I am requesting a reasonable accommodation.”

Then, suggest the reasonable accommodation you and/or your doctor thinks would be most effective. Be prepared, however, for your employer to suggest an alternative and to discuss that alternative in good faith. Importantly, you are not entitled to the accommodation of your choice; you are only entitled to an effective accommodation, even if it is the accommodation proposed by your employer. If you or your doctor does not believe the alternative accommodation proposed by your employer would be effective, you and your employer can negotiate for one that is mutually acceptable.

Finally, also be prepared that approval may not be automatic: your employer may need time to verify your disability and your need for the particular accommodation you requested, you may need time to get appropriate medical documentation, and your employer may need more time than normal to obtain any appropriate equipment. Both you and your employer are required to engage in an interactive dialogue in good faith—during this pandemic, this includes extra flexibility and patience from everyone. During this time, you should ask for an interim reasonable accommodation, a temporary accommodation that may be the same or different than the accommodation initially requested and may include the use of leave if there are no other alternatives.

Which accommodation is most appropriate will depend upon the individual’s disability and job duties. To determine which accommodation(s) would be most effective for you, provide your physician with a copy of your position description and discuss your request and any alternative(s) proposed by your employer. Common requests during this time include personal protective equipment (PPE), teleworking, and the use of leave.

It depends. An employer is required to approve a request for a reasonable accommodation which assists the employee in performing the essential functions of their position unless the accommodation would be an undue hardship. What may constitute an undue hardship is fact-specific and the current pandemic may have an effect. If an employer denies a request as an undue hardship, the employer should explain the basis for its decision and offer alternative accommodations, where possible. If an employee is facing denial of a request for a reasonable accommodation, they should speak with an attorney about the specific facts.

No. An employer may not exclude an employee from the workplace because of the employee’s disability unless it has a reasonable belief, based on objective evidence, that the employee’s disability makes the employee a threat in the workplace. An employer also may not exclude an employee from the workplace because the employee has a record of a disability or because the employer perceives the employee to have a disability.

No. Although absence from work is a less common accommodation, and the courts differ on the circumstances under which this is appropriate, if an employer is offering or requiring absence from the workplace due to an employee’s disability, the employer cannot forbid the employee from using available leave during that time.

It depends. If an employer already has knowledge of the disability and the ways in which the disability limits the employee, the employer may not request the employee produce additional documentation.

Even where the employer may request documentation, the EEOC advises employers to be flexible during this time and suggests accepting alternative forms of verification such as prescriptions or health insurance records. Identify what alternative confirmation you may have available and talk to your employer’s disability coordinator.

Employees are entitled to reasonable accommodations even when teleworking; however, there are unique factors that come into play. For example, if an employee already owns equipment at home, the employer may not be required to purchase a duplicate for home use. As another example, if the employee is only teleworking because of the pandemic, the relatively short duration of the telework arrangement will factor into an employer’s undue hardship analysis in terms of cost. Finally, as with any request for an accommodation during this time, supply shortages and delivery delays caused by the pandemic may impact the request.