Legal Ease Coronavirus and Investment Casting Employees by Richard D. Alaniz, Alaniz Law & Associates A fully functioning critical
infrastructure is absolutely necessary at a time when our
country is desperately seeking to respond to the COVID-19 (Coronavirus) pandemic. Foundries come within the “Critical Manufacturing” segment, one of 16 groups of operations deemed essential to our economic and national security by the Department of Homeland Security. As part of the “Essential Critical Infrastructure
Workforce” foundry
workers are exempt from the various “shelter-in-place” orders that have been issued by numerous states and counties nationwide.
Steps to Protect Employees Since foundry workers do not generally work on a crowded production line as do workers in other industries, some “social distancing” can be done in this workplace. Additional safety measures such as splitting up break times and installing more places for workers to wash their hands should also be considered. Companies should also increase sanitization efforts throughout by ordering staff to wipe down doorknobs, flat surfaces, microwaves, coffee makers, elevator buttons, and other common objects that people touch throughout the day. However, in this Coronavirus-
changed climate it could certainly lead to reasonable concerns by employees over potential “community spread” simply by being in the workplace around other employees. Thus far there has been only one report of employees refusing to work due to Coronavirus concerns. It occurred in the poultry processing industry on March 23, 2020 at a plant in Georgia. The employee walkout was temporary, and the matter was resolved by the company agreeing to
increase the plant-wide sanitation protocols. Amazon employees in New 24 ❘ April 2020 ®
York are threatening to refuse to work unless the company temporarily closes to sanitize their workplace. While we want to believe that such a refusal to work is unlikely in our foundries, the possibility is always there and may become a reality if an employee tests positive.
Employees that Refuse to Work How an employer responds to a refusal to work in the face of Coronavirus fears has potential consequences under several different laws.
National Labor Relations Act and Refusing to Work
Section 7 of the National Labor Relations Act (NLRA) protects employee activity not only related to union matters, but also to activity that is “concerted”. This refers to employee activity that is undertaken together by two or more employees, or by a single employee on behalf of himself and others. Employees refusing to work because of fear over the Coronavirus would almost certainly be considered protected concerted activity subject to an unfair labor practice charge
if disciplinary action was
taken. Because of the decline in union organizing in recent years, the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, has been focused on enforcement of violations related to protected concerted employee activity. Also, given current circumstances, they would likely take prompt action in such a case.
OSHA and Employees An employee refusal to work due to Coronavirus concerns, whether a single employee or more, would also implicate Section 13(a) of the Occupational Safety and Health Act (OSHA). That provision of the law permits employees to refuse to work if they reasonably
believe that they are in imminent danger. Given the current concerns over “community spread”, absent unusual circumstances, it would be difficult to characterize such fears as not being reasonable. Disciplinary action against the employee, especially discharge, would constitute retaliation against the employee for exercising a right under the OSHA Act.
State Laws
Some states, New Jersey for example, have laws that specifically prohibit employers from retaliating against an employee who refuses to participate in activity they reasonably believe violates a law or public policy mandate that affects public
health and safety. Preventive
measures against Coronavirus infection are clearly now a matter of public policy on both the federal and state level. In addition, some states recognize a public policy exception to the traditional rule of employment-at-will. Termination of an employee for refusal to violate a public policy would be a wrongful termination under state law. Finally, employees with an underlying medical condition that qualifies as a disability under the ADAAA might reasonably fear that they could be more susceptible to infection in the workplace. Therefore, employers must tread cautiously when responding to employee refusals to work related to the Coronavirus pandemic.
Families First Coronavirus Response Act All employers with 499 or fewer employees, including foundries, may also soon be dealing with employee absences related to COVID-19 under the emergency paid sick and FMLA leave provision of the Families First Coronavirus Response Act which became effective on April 1, 2020. Employees are eligible for two weeks (80 hours total) of paid leave at their
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