Editor’s note: The U.S. needs an all-hands-on-deck approach to mitigating the COVID-19 pandemic. But what if workers – in particular, health care workers – stop showing up due to unsafe working conditions? Michael LeRoy, an expert in labor law and labor relations at the University of Illinois at Urbana-Champaign, spoke with News Bureau business and law editor Phil Ciciora about what protections workers have if they're confronted with an unsafe working environment.
Can the government force workers – whether they’re health care workers or grocery store clerks – to work during a pandemic?
The Thirteenth Amendment prohibits “involuntary servitude.” It was enacted in 1865 to bar slavery. However, the law was not applied to state and local governments. They had long-standing practices of requiring able-bodied men to perform several days of labor every year to build and repair roads and bridges. In 1916, the U.S. Supreme Court ruled that governments cannot order private citizens to perform compulsory labor. That ruling applies today: No government, be it federal, state or local, has constitutional authority to order people to work against their will.
That sounds impractical in the face of the current pandemic. What can governments do to ensure that essential workers show up?
Two things: First, they can create strong incentives to work. This, too, is a long-standing practice. Towns in colonial America would often hire their own private doctors to treat smallpox victims. The doctors were paid large premiums to accept this terrible risk. That concept appears to be taking shape in the emerging stimulus bill. Second, governments can order the military to perform civilian duties, either in private organizations – for example, in a hospital – or can offer parallel services in field hospitals.
What are the protections for workers who refuse to show up or walk off the job due to unsafe working conditions or environments, or the lack of safety equipment?
The Occupational Safety and Health Administration has a “work refusal” rule that likely applies to some situations today. An employee has to have a good-faith belief that an imminent danger to their life or health exists. The rule protects them from being fired.
That said, employees in the past have often lost these cases where a court has said the employee had a subjective belief in being at risk for death or serious injury. To cite one example, coal miners refused to work on a shift when methane was measured above the safe level. The Supreme Court said that wasn’t justification for refusing work that day.
How it translates today is hard to say. A nurse who refuses to come to work because of lack of a protective mask would believe the risk is too great. Some courts would likely agree – after all, they are closed for the most part to protect people at court. But another court might say the lack of a mask increased the risk but did not rise to the level of a life-or-death matter.
What do employers owe people who become infected with COVID-19 on the job?
It depends on the job. In short, the employee may have a workers’ compensation claim. An emergency room doctor who becomes ill with COVID-19 – or even dies – would likely be eligible for benefits ranging from income replacement, medical costs, rehabilitation and a death benefit. The employer could challenge the benefit, saying that the infection could not be proved to have occurred in the course of employment.
If you think that sounds harsh, that’s how many firefighters and police officers were treated in their workers’ comp claims after they developed cancers related to their intense exposure to carcinogens at ground zero after 9/11.
A clerk at a pharmacy could make the same claim and might have contracted the infection from a customer, but they would have problems proving “causation” of the injury from work and not another source.
Can someone who contracts the new coronavirus or some other illness on the job be fired?
Before taking that action, employers should realize they are subject to the Family and Medical Leave Act. This permits an employee to take unpaid leave or used accrued sick leave for twelve weeks within a 12-month rolling period for a serious medical condition.
If the employee has exhausted FMLA, the answer is yes. The U.S. has an at-will employment system. This means an employer can fire someone for any reason as long as it’s not unlawful. Under the Americans with Disabilities Act, employers cannot fire people who are “regarded as” being disabled. However, the same law says an employer may discriminate if an employee presents a “direct threat” to others.
Health care workers are unique in that there are no ready-made substitutes for them. It takes years to train doctors and nurses. Does that give them more leverage than grocery store workers to refuse to work?
It appears that way. We’re already seeing unions, especially for nurses, strongly advocating for more resources. But work refusal is really complicated for nurses, too. Apart from their ethical commitment to treat the ill, they are licensed by states. If push comes to shove, state licensing boards would probably raise the possibility of at least disciplining nurses who refuse to work.