R. Patrick Bolling

R. Patrick Bolling
Associate

Dudley F. Woody

Dudley F. Woody
Principal

An employee said he’s not coming to work because COVID-19 makes him “feel unsafe.” Do Virginia’s workplace safety standards really say he can do that?

There is good reason to take precautions to protect your staff and colleagues, who go home to families every day, from the spread of COVID-19. We noted in May 2020 that employers might need to accommodate mental or physical disabilities impacted by the possibility of contracting COVID-19 in the workplace.

Since then, Virginia’s Department of Labor and Industry adopted the nation’s first state-level COVID-specific workplace safety standards (pdf), which establish the guidelines:

“Nothing in this standard shall limit an employee from refusing to do work or enter a location that the employee feels is unsafe. 16VAC25-60-110 contains the requirements concerning discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.”

Some employers are wondering what, specifically, that means. Does it mean an employee can, with impunity, tell you they feel unsafe and refuse to do a task, or stay home for the day? Can they, in other words, call in “afraid?”

Not exactly. Even though we have employee safety at the forefront of our actions, especially during the COVID-19 pandemic, the new standards are designed to protect employees from being forced to work in very dangerous situations. Essentially, before they walk off the job, they have a duty to point out the hazard to you.

Did the Employee Try Other Remedies First?

You’re prohibited from disciplining or discharging an employee only if the employee has sought abatement of the hazard and the statutory procedures for securing abatement would not have provided timely protection.

Are the Safety Fears Reasonable?

Has the employee called you from their car in the parking lot, refusing to enter the workplace because they saw the car of a co-worker who is known or suspected to be infected with COVID-19? (They heard it through the grapevine, of course. Remember employee privacy rights.)

Did an employee run out the door and later text you a picture of people not wearing masks on the manufacturing floor in the breakroom, elevator lobby, or another common area when they should have been?

Whatever they tell you, the condition causing the employee’s apprehension of death or injury (the car in the parking lot; the absence of masks) must be of such a nature that a reasonable person, under the circumstances then confronting the employee would conclude that there is a real danger of death or serious injury. In other words, put yourself in their shoes.

What Actions Could Lead to Retaliation Claims?

If you determine they’ve engaged in a protected activity, discharging or disciplining them could lead to a retaliation claim.  Some examples of retaliation, DOLI notes, are:

  • Firing,
  • Demotion
  • Transfer
  • Layoff
  • Losing opportunity for overtime or promotion
  • Exclusion from normal overtime work
  • Assignment to an undesirable shift
  • Denial of benefits such as sick leave or vacation time
  • Blacklisting with other employers
  • Taking away company housing
  • Damaging credit at banks or credit unions
  • Reducing pay or hours

What Are Other Legal Considerations?

Requests like this one—fear of injury or death in the workplace due to COVID-19—could trigger a duty to start the ADA interactive process. The employee might have special circumstances because of a disability. Furthermore, if you are in a unionized workplace, a collective bargaining agreement might give employees the right to refuse to do a job because of potentially unsafe or unhealthy workplace conditions, even if VOSH cannot enforce it.

How Can I Protect My Workplace From Retaliation Claims?

The best way to defend against a retaliation claim is to prevent it.

  • Communicate with your employees and be transparent about your efforts to keep them safe.
  • Take employee complaints about safety seriously so they do not need to escalate their concerns to VOSH.
  • Keep good documentation for disciplinary procedures or employment status changes. This is always a best practice, but even more important if the employee has previously complained about workplace conditions related to COVID-19.

Navigating the new laws and guidance related to COVID-19 is difficult. Woods Rogers’ Labor & Employment team is ready to help you manage your workforce through these challenges.


If you have questions about Virginia’s Emergency Temporary Standards and retaliation claims:
Contact Patrick Bolling at pbolling@woodsrogers.com.
Contact Dudley Woody at woody@woodsrogers.com.