The American Bar Association periodically publishes brief papers on topics of popular interest. They call the papers “Fact Check” papers. The ABA has published a Fact Check paper on whether and to what extent an employee can refuse to work at unsafe work places. See that paper here. The paper points to the general requirement imposed by OSHA that work places be protected from “recognized hazards” that can cause death or serious injury.

New OSHA guidelines also require employers to keep employees six feet apart when possible, take temperatures, disinfect surfaces and to provide face masks. The paper notes that already, several thousand complaints have been filed with OSHA regarding employers not following these guidelines.

But, the paper finds only limited support for workers who are simply afraid to return to work. The paper points to the decision in Bragdon v. Abbott, in which the U.S. Supreme Court found that an asymptomatic HIV person did have a disability for purposes of the Americans with Disabilities Act. The problem, the paper notes, is how to address persons with no COVID19 diagnosis, but who are simply afraid to go to work. There is little relief for such folks. There is no legal requirement that employers address fears which do not involve a disability. In 2019, the Eleventh Circuit found that the ADA only applies to persons who already have a diagnosis, not healthy persons who sometime in the future might experience a disability later. EEOC v STME, LLC, No. 18-1121 (11th Cir. 9/12/2019). That case involved an employee who refused to fly to Ghana during the Eboloa epidemic.

As the paper notes,  looking at state law, employment at will means an employer can fire a person for any non-discriminatory reason. Fear of possible infection is not protected by any law in Texas, unfortunately.

Be Safe.