Rogge Dunn, founding partner at Rogge Dunn Group. Photo: Courtesy Photo

When it comes to concerns about contracting the coronavirus on the job, many essential workers are asking about their legal rights to refuse to perform certain job tasks if they believe they are unsafe and put them at risk of contracting the virus, says Dallas labor and employment attorney Rogge Dunn.

Texas Lawyer had the chance to speak with Dunn recently about how to help employees and employers understand their rights and risks with COVID-19.

Do government workers have the right to walk off their Jobs if the working conditions are unsafe due to COVID-19?

Rogge Dunn: Long ago [the Occupational Safety and Health Administration] promulgated a regulation creating a right for workers to refuse to do dangerous work. 38 FR 2681, 1977. 12(b)12 (Jan. 29, 1973). The regulation allows employees to walk off the job and refuse to work when there is a real danger of death or serious injury that cannot be eliminated.

The regulation provides workers, both public and private, with workplace safety protections provided they meet four strict requirements. And, in the past, courts have enforced these four requirements very narrowly and often indicated an unwillingness to protect workers.

In one such case, miners refused to work because they believed the methane levels in the mine could be above the safety limit. The miners walked off the job and their employer fired them. The workers appealed all the way up to the U.S. Supreme Court, which held that workers had to present some objective evidence of imminent danger and ruled in favor of the employer.

Therefore, government workers and employees of private companies need to proceed carefully.

First, they should contact the employer and ask for the danger to be eliminated or significantly mitigated. For example, providing masks and protective equipment, implementing social distancing rules, etc.

Second, if the employer will not eliminate the danger, then employees should notify OSHA and ask OSHA to intervene.

Third, if OSHA does not take action, the workers' refusal must be in good faith, which means they must genuinely believe that an imminent danger exists and seek the intervention of professional organizations like the [American Medical Association] or the American Nurses' Association.

Finally, if the matter goes to court, the workers must prove that a reasonable person would agree that the workplace situation involved a "real danger of death or serious injury."

These requirements are of particular note for public employees, nurses, EMS personnel, doctors and other first responders, all face the potential of substantial discipline from state licensing authorities for refusing to perform their jobs.

If a nurse or doctor walks off the job, the state licensing authority can censure them, fine them or revoke their state license, leaving them unable to work in their chosen field.

Actions by state licensing authorities is a serious concern. And you can understand the state licensing authorities' point of view.

If a police officer says, "I'm not going to the school where there is an active shooter because that work could involve my serious injury or death" or if a doctor says, "I'm not going to treat a patient with COVID-19 because I don't have appropriate PPE," those actions could cause a shortage of first and front-line responders during dangerous emergencies. Obviously, that would put the public at an extreme risk.

From the government's or licensing authorities' perspective, although doctors', nurses' and first responders' jobs are inherently dangerous, those are risks that you signed up for when you took the job.

In addition, government workers who take an oath as part of their profession may face a moral, if not legal, dilemma. Pursuant to the Hippocratic oath, doctors must "preserve the finest traditions of my calling." The American Medical Association's Code of Ethics states that "individual physicians have an obligation to provide urgent medical care during disasters." Oaths taken by peace officers and others to "protect and serve" the public may be violated if government employees fail to help the public in order to preserve their own safety.

The bottom line for government workers is they must take into account a number of adverse consequences if they refuse to work because of dangerous COVID-19 conditions. They could be fired and might face a retaliation claim under the OSHA regulation. And they must consider the risk of facing discipline from the entity that licensed them. Finally, government employees face potential criminal prosecution if they refuse to render aid or walk off the job. Recall the sheriff's deputy who refused to enter a Parkland, Florida, high school because an active shooter was in the building. That deputy was criminally prosecuted on 11 charges of neglect and negligence (felony and misdemeanor counts) for remaining outside the high school while the shooting occurred. Thus, government workers on the front lines of this pandemic face a dangerous dilemma: Do I put myself and family at risk, or do I walk away from helping members of the public in their time of need?

What about workers in the private sector?

Private workers have the same OSHA regulation protection as public workers noted above. However, private workers do not have to worry about losing their license or being criminally prosecuted for failing to render aid or refusing to work.

Are there any times where no worker has the right to walk off their Jobs?

Workers have an absolute right to walk off their jobs pursuant to the OSHA regulation. However, as noted, employees who walk off the job face serious consequences including demotions and firings, and criminal prosecution and licensing penalties for public sector employees.

What are some things attorneys in the labor and employment practice area should be doing during the COVID-19 pandemic?

They need to prepare employers for a multitude of issues including, but not limited to, OSHA's Refusal to Work Rule, union strikes, grievances, employees showing up to work without masks, requiring employees to wear protective gear, responding to worker requests to work remotely if they are quarantined, their children's day care or school is closed, they are out on FMLA or sick leave and not violating the numerous recently passed federal laws: Emergency Paid Sick Leave Act, Medical Leave Expansion Act and the Families First Coronavirus Response Act.

In a nutshell, employers need to seek legal advice and understand longstanding employees' protections under OSHA, as well as new protections provided by Congress—before they take any action against an employee.

In addition to these legal protections, employers face the specter of significant adverse publicity if they are viewed as taking harsh, insensitive or illegal action against employees. The backlash on social media alone could create a PR nightmare, resulting in long-term damage to the company's reputation.

Attorneys representing employees should familiarize themselves with the new laws and long-standing workplace laws to understand fully the panoply of protections available to employees. Proactively helping employees by ghostwriting emails and documenting an employer's violation of the new pay and leave laws will put employees in an advantageous position if they are fired and/or retaliated against.

If you are an employer or a worker thinking about litigating, what kinds of questions Should you be asking?

First and foremost, employers and employees should be asking how they can work together to find common sense resolutions. We are all in this together, and these challenging times require innovation, flexibility and understanding. Both sides should be open about their questions and concerns.

If an employer is not responsive or cooperative, practically speaking, the best way for employees to approach these issues is as a unified group. If one employee approaches his employer, it is easy for the employer to characterize them as a malcontent or "rabble rouser."  In these situations, employers often target the first person "out of the trenches" and fire them or retaliate against them to send a chilling message to other employees to keep quiet.

On the other hand, there is much validity to the cliché that "there is safety in numbers." If most employees band together to approach the employer about fixing unsafe working conditions, or they will refuse to work en masse pursuant to the OSHA regulation, the employer will be forced to negotiate. Literally almost no employer can fire a large group of employees for raising safety concerns.

An employer must consider the fact that OSHA regulations allow workers to walk off an unsafe job. Firing or otherwise retaliating against those employees who refuse to work is risky—both legally and from a reputation standpoint. Employers should be seeking the advice of experts to look for solutions in addressing employees' concerns.

Rogge Dunn is founding partner at Rogge Dunn Group, www.roggedunngroup.com. He is board certified in civil trial, labor and employment law and often handles issues involving employment, partnerships, FINRA arbitration, class actions, defamation, privacy issues, shareholder oppression, "business divorce," noncompetes, trade secrets, whistleblowing and significant personal injury matters. He can be reached at [email protected].