A lot of questions and queries are being upraised whether an employer holds the legal right to discharge or discipline employees who deny serving out of anxiety and concern regarding the COVID-19. The precisely legal response to this question is, “it depends.”
ACAS has announced guidance for organizations on how to manage disciplinary and grievance systems during this pandemic. The direction will support employers facing problems concerning the disciplinary procedures notwithstanding the fact that workers are not in the worksite.
In this COVID-19 situation, both legal and worker relations problems are at stake. Here are some of the employee’s rights during COVID-19.
Employees with Recognition versus At-Will Employees
Generally, employees at-will could be terminated at any time for any cause, except for an illicit reason. Employees with employment contracts or who are subjected to common bargaining contracts can be terminated concerning the reasons that are particularized in the recognition. That is why the terms of the contracts must be considered thoroughly.
Under limited conditions, OSHA gives the employee the right to deny dangerous work, in good faith. For the liberty to refuse, the work must imperil the employee to a dangerous situation at the worksite that is a “genuine threat” of serious injury or death, assessed employing an actual measure of reasonableness in the conditions.
The NLRA (the National Labor Relations Act) interdicts employers from requiting against workers for engaging in preserved, concerted actions. Usually, when two or more workers refuse together to work under uncertain circumstances, they are defended against discharge. Still, employees who display personal concerns regarding the COVID-19 are not defended by the NLRA. Supervisors and administrators are also not embraced by the NLRA.
FMLA and ADA
Workers who are qualified people with disabilities under the ADA and similar state, city, and county laws, who deny working because of the menaces that the COVID-19 present to the medical conditions are allowed to reasonable adjustments, which could incorporate an unpaid leave for absence.
Furthermore, the FMLA covered workers are allowed to get up to twelve weeks of job-protected unpaid leave in a chosen twelve-month term because the worker is debilitated due to a severe health ailment or a family member who is debilitated due to a severe health ailment.
Employers need to substantiate that the hiring decisions made by them are not biased based on any aspect that is guarded under any appropriate EEO law (Equal Employment Opportunity). Therefore, in making termination or other disciplinary arrangements, employers should approach employees continually without consideration of employees’ protected characteristics.
Common-Law Public Policy Claims
Organizations must be equipped to safeguard themselves against cases for wrongful release in violation of federal policy if a worker is dismissed for denying to work because of COVID-19 concerns. Usually, such claims are practical if the discharge violates a public policy stated in relevant state law, but disputes may be advanced especially when presented with an employee’s right to decline hazardous work under OSHA.
The article is not asking employees to refuse or down tools to work during this time of crisis. People working in supply chains and shops, or providing essential services should be praised for their outstanding contributions. But the pandemic should also not divest them of the basic right to secure working conditions.
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