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Your legal rights if you refuse to work over COVID-19 fears

Posted at 12:30 PM, May 09, 2020
and last updated 2020-05-09 15:40:27-04

As restaurants, retailers and salons in Arizona prepare to reopen, some workers are faced with a tough decision: go back to work and potentially expose yourself to COVID-19 or refuse to work and lose income.

According to Arizona State University employment law professor Michael Selmi, in general, employees don't have a right to refuse to work because they feel unsafe in the workplace. However, he said an employee can refuse to work if they feel like they're in imminent danger, which is hard to interpret.

"A generalized fear of catching the virus would likely not constitute a fear of imminent danger," he said.

Selmi said if you feel that your workplace isn't doing enough to minimize the risk of COVID-19 exposure, there are two legal options:

Option 1:

File a complaint with Arizona's Occupational Safety and Health Administration (OSHA.)

  • OSHA could investigate and require changes
  • You would have protection from getting fired

"Again, it's not an easy test to meet. There's not a specific guideline or regulation that would apply in this instance, said Selmi.

Option 2:

You and a group of employees could walk off the job.

  • If you're fired, you'd likely be protected under the National Labor Relations Act

"But it's not an easy remedy if they left work in that instance, they could be replaced. Even if they weren't replaced, they could be fired. And if they're ultimately successful in a legal claim, that could take years," said Selmi.

If you decide not to work, you most likely won't be able to get unemployment insurance --both from the state and the federal CARES Act. Your employer can't stop you from applying, but they can challenge your application.

According to a spokesperson from the Arizona Department of Economic Security, individuals may continue to receive state benefits if they have "good cause" not to return to an employer, which can include pandemic-related situations. This is determined on a case-by-case basis.

"But in many ways, the definition of good cause is like imminent danger, it's a very difficult term to know, and generally it's been interpreted narrowly, and it's hard from an employee to know what may constitute good cause in that circumstance. But this is another area where the state could step up," said Selmi.

Selmi said there is a lot of uncertainty still when it comes to what legal protections both employees and employers have related to COVID-19. He said as lawsuits get filed, new federal and state guidelines may be released.

Selmi also noted that Worker's Compensation insurance wouldn't apply if you get COVID-19.

The US Equal Employment Opportunity Commission recently released new COVID-19 guidance for employers, Arizona Senator Kyrsten Sinema said.