With South Carolina starting to reopen some nonessential businesses, it can be difficult to determine how to act if you are ordered back to work. Obviously, fears remain, and the impulse for many will be to try and avoid going back to work. However, it is a good idea to be aware of your rights under both South Carolina law and federal regulations if your workplace reopens so that you can act accordingly going forward.
Safety Protocols Are Non-Binding
Both the state and federal Occupational Health & Safety Administrations (OSHA) have published new guidance on preparing a workplace for COVID-19. Generally, people are being grouped into four categories—low, medium, high, and very high exposure risk—and workplaces are expected to enact and observe temporary protective guidelines accordingly. The OSHA guidance is explicitly non-binding, meaning that if your workplace is in violation, it is not breaking the law. However, you still have options to address the problem—as a general rule, your employer is required by law to provide a safe working environment for all its employees.
Your first step should be to try and speak to someone in-house. If this is unsuccessful in dealing with the problem and you can establish evidence of the safety concern, you have the option of filing a complaint with OSHA or SC-OSHA. If your complaint is taken seriously, your employer will usually be inspected, with compliance being enforced. If it is not taken seriously, you may have a very difficult choice to make.
Fear Of Exposure & Retaliation
If your workplace is lax in its safety protocols and complaints have fallen on deaf ears, you do have the right, in some circumstances, to refuse to return to work. OSHA recognizes what it calls the right to refuse dangerous work, and if you can establish three criteria, you may succeed in that claim. The criteria are:
- Having requested the hazard be reduced or eliminated and the employer refusing to do so
- Stopping work in “good faith”—that is, you must objectively (as a reasonable person would) believe that danger exists
- That there is not sufficient time to pursue other options that would take longer, such as requesting an OSHA inspection
You have the right to refuse dangerous work, and in some cases, you may even have the right to quit while still receiving unemployment benefits, if you can show good cause (for example, quitting because your employer refuses to improve safety standards, or if you have a family member stricken with COVID-19 who needs you to act as a caregiver). However, whatever you decide to do, your employer does not have any right to retaliate against you for any kind of health and safety-related action. If you are terminated or discriminated against because you filed a complaint, or sought to take owed vacation time or non-paid leave due to the virus, you will almost certainly have a case for wrongful termination.
Contact A South Carolina Employment Discrimination Attorney
It’s important to know what your rights are if your workplace reopens. The current global pandemic has many workers and employers on edge, and if you do not have to risk your safety for a paycheck, you deserve to be aware of that fact.
If you have questions about your rights as an employee, or if you believe you have been unfairly treated by your employer after expressing safety concerns at work, contact an employment discrimination attorney. Attorney A. Christopher Potts at the firm of Hitchcock & Potts is happy to assist you.