Health care workers, to include those over the age of 65, are exempt from self-isolation and shelter-in-place requirements. Thus, a health care worker who refuses to come to work because of fear of infection would not be able to rely solely on those requirements as justification for their absence.
Generally, employees can refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA further clarifies “imminent danger” to exist in situations where “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”
Cal/OSHA also provides protection to employees who refuse to work under hazardous conditions. Generally, it is illegal for an employer to retaliate against an employee who refuses to perform hazardous duties, if performing the work would violate a Cal/OSHA health or safety regulation, and the violation would create a “real and apparent hazard.”
While neither OSHA nor Cal/OSHA have addressed the existence of “imminent danger” or hazardous duties as they pertain to health care workers’ exposure to COVID-19, OSHA has classified health care workers and support staff as having “very high” to “high” exposure risk to the disease. Thus, an employer’s failure to implement safety control measures, or abide by state and federal standards designed to protect health care workers against transmission of infectious agents (such as failure to provide appropriate PPE), may create a situation that rises to the threshold of an “imminent danger” or “real and apparent hazard.” Because the duties of most health care workers necessarily involve potential exposure to COVID-19, employers should strive to ensure that they adhere to all workplace health and safety regulations and address the concerns of individual employees.
It should be noted that this guidance is general, and employers must continually review the facts and circumstances in their workplace before determining whether it is permissible for employees to refuse to work.