Can Healthcare Workers Refuse to Work, during the Pandemic?
Many healthcare workers have little kids or elders they are responsible for, many have their own health compromised, but they feel compelled to go to work because they are healers. Healthcare workers are today's soldiers against they pandemic. They are self-sacrificing, hardworking, usually over extended, and have much to be concerned about including their families. Generally, employees do not have the right to refuse work at their discretion or else they can potentially face disciplinary actions or even termination. However, under exceptional circumstances Covid-19 may trigger the Occupational Safety and Health Act (OSHA):
1) Lack of Safety Equipment – depending on the level of exposure, the lack of basic safety measures such as disinfectants, sanitizers, safety masks and equipment may cause an imminent risk of life or health to the employee, which an employer is responsible for providing. Depending on the level of exposure to the worker and the availability of safety equipment, this situation could trigger OSHA issues. Note: lack of safety equipment can only be witnessed once the person actually goes to work, so showing up to work is important.
2) Employee Disability – if an employee has a known disability that puts them at higher risk for contracting Covid-19 then the employer is required to make reasonable accommodation, like letting them work outside of the risky environments.
The two above conditions are something to be mindful of in today's environment. Another issue affecting workers might be a family member who is seriously ill.
3) Family Medical Leave Act (FMLA), may be an obligation that an employer should be mindful of. If it is triggered, employees may get up to 12 weeks of relief so they can take care of their spouse, child, or parent with a serious medical condition. FMLA is very specific and it does not apply to all situations. FMLA is only triggered if the employee has worked more than 1250 hours in the last 12 months and the employer employs over 50 employees at or near the location of work. Serious medical condition is something that is documented; it may require hospitalization or continuous medical care, etc. it depends. Note: Caring for a child for lack of not being able to find childcare is typically not deemed a qualifying condition to invoke FMLA. There is also Family First Corona Virus Response Act that offers some relief if you or someone within your family contracts Covid-19. https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave
An employee does have the right to ask for safety equipment and for policies and procedures in place from an employer concerning the issues pointed out above. The general public has much heart felt gratitude for today's healers. If you have questions or are wondering about your own unique situation, feel free to call or text me.
Ben
Ben Assad Mirza, Esq., LLM, CPA, MPHA, CHC
Healthcare Law Partners, LLC
401 East Las Olas Blvd., Suite 1400
Fort Lauderdale, Florida 33301
Cell/Text: (954)445-5503 (Primary)
Office: (954)634-2370 (Secondary)
There are many issues here involving employment law, right to work laws, and occupational health and safety.
