Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
UPDATE 4/14/20: After this post was published, OSHA released new guidance advising employers of Delivery Drivers to take measures such as staggering shifts, providing hand sanitizer and disinfectants, and requiring deliveries to be left at loading docks or other locations. Additionally, New York Governor Cuomo has signed a new executive order requiring employers of essential workers who are working with the public to provide face masks at no charge to the employee.
Our essential workers – nurses, grocery store workers, emergency service workers, custodians, farm workers, meat packers, etc. – are working dangerous jobs to keep us safe and fed these days. Not all employers are treating essential worker safety as their number one priority, as demonstrated by several highly publicized worker walkouts in recent weeks. What can workers do in the face of limited protection from dangerous conditions?
Short Answer: ORGANIZE!
Already Belong To A Union?
If you are an essential worker in a unionized workplace, your Union is probably already negotiating with the employer to implement safety measures such as automatic paid leave for workers who may have been exposed and PPE for those who remain. But a Union can’t negotiate over conditions it doesn’t know about. If you are a unionized worker and you are concerned about the safety of your work situation, call your Union reps immediately.
Additionally, you should check with your Union reps to find out if there is a provision in the collective bargaining agreement [“CBA”] that gives you the ability to refuse dangerous work. In some situations, a unionized worker can get protection from unsafe working conditions under the language of the CBA. BE CAREFUL WITH THIS IDEA. This is not carte blanche to refuse work. You have even less protection if your CBA doesn’t cover a right to refuse dangerous work.
Your Union can probably get information that you can’t, for example, information about COVID-19 cases in your workplace. Health and safety are terms and conditions of employment, so the Union has the right to demand information it needs to help protect you from exposure. Be aware that an individual employee does not have the right to that info, and the Union’s legitimate request for info to protect its members is balanced by the employer’s legitimate interest in complying with the confidentiality provisions of the Americans with Disabilities Act. The specific circumstances of your situation will dictate what is disclosed. It’s extremely unlikely that an employer will reveal the name of a worker who has been diagnosed, but the Union may be able to get information that helps it protect coworkers at risk of exposure.
No Union? You Still Have Some Rights.
If your workplace doesn’t have a Union, you may still be able to engage in something called “protected concerted activity” over certain workplace problems. We strongly recommend you make an appointment with an attorney to determine whether concerted activity will be protected in your situation.
To have this protection, you cannot be the only worker with a complaint. The protest must be over something that affects multiple workers. The best way to get the “protected concerted activity” protection is to join with several other workers in speaking out about the employer’s failure to provide safe working conditions. Get names, phone numbers, and email addresses of coworkers who agree that something needs to be done. Make sure you are actually protected. If you are a private sector worker, or if you work for a municipality or public school district in the State of New York, then you can probably join with your co-workers and collectively refuse to perform unsafe work. Here are some pointers:
- If there’s time, give the employer a chance to fix the problem. It’s possible the employer just hasn’t thought of the safety measure that you’re asking for. Some employers have no idea how their employees actually do what they do.If you need more breaks for handwashing, or your sneeze guard is at the wrong height, get together with some other workers and go visit the manager. Ask for it nicely. Document this conversation, including date, time, place, a chronological synopsis of what was said, who said it, and who was present.
- If the situation is urgent:
- Don’t assume that just because you say something in front of other workers your activity is protected. Make sure to document that whatever you say or do is on behalf of, and coordinated with, your coworkers. If you walk out and picket, make sure there are other people walking and picketing with you.
- Don’t use profanity or resort to nastiness to get your point across. Your activity is not protected if it is threatening, egregiously offensive, or false.
- Do document date, time, place, what was said in chronological order, and who was present.
- Do remember that just because the employer isn’t supposed to do it, doesn’t mean they won’t. You might get fired. If your activity is protected, you will be able to pursue your rights with the NLRB or NYSPERB, but it can take a while. If it’s a choice between your job and your life, you need to make the right decision for you.
What if you’re the only one?
Are you stuck working in an unsafe environment just because you’re the only one dealing with it? Maybe not. OSHA does offer slightprotection for workers in truly unsafe situations. If you are truly in a life threatening situation, and if you seriously believe that you are in immediate danger, and if you have previously asked the employer to fix the problem, and if the employer failed to do so, and if you don’t have time to contact OSHA to request an inspection, then you might have individual protection under OSHA.
That’s a lot of “ifs.”
Bottom line, ask your employer to fix the dangerous situation. Tell the employer you won’t do the task until the employer has fixed the problem. Stay at the worksite unless the employer tells you to leave. Document the heck out of this interaction (when, where, chronology of the conversation, what was said, who was there). If the employer sends you home or otherwise retaliates, call OSHA within 30 days of the retaliation. The number is 800-321-6742. Don’t delay this phone call. OSHA won’t help you more than 30 days out.
It’s tough enough to be an essential worker. But you may have some control over the safety of your workplace. It’s tricky, so call an attorney if you are thinking of taking one of these steps. Stay safe, everyone.
 Fair warning: If you get fired because of engaging in protected concerted activity, you may still be able to get some relief, but it will take a long time for the National Labor Relations Board or New York State Public Employment Relations Board to get to your case, both because of the shutdown and because it normally takes a while to process and litigate claims.
 Other states may have laws that govern the protected concerted activity of their public sector workers. Always consult with an attorney to see if you have such protections.