Refusal-to-Work Guidance

COVID-19 has laid bare the falsehoods and limitations of the for-profit medical industry in the United States. Even at OHSU, which is a non-profit, it is clear that for years the priority has been executive pay and building state-of-the-art facilities. As gorgeous as the South Waterfront buildings are, they have little value when workers lack proper personal protective equipment. More and more, health-care workers across the country are being asked to risk their health and safety due to the lack of PPE.

This has raised an uncomfortable but increasingly reasonable question: “At what point do I have the right to refuse to do the work due substantial risk on the job?” This article is not intended to advocate for such a position, but to inform you of your rights. Such a choice is yours alone; that said, if it is done properly, your union will stand with you. Before we go into detail about the process, we want to highlight the steps involved:

The right to refuse to do a task is protected if ALL of the following conditions are met:

• Where possible, you** have asked the employer to eliminate the danger, and the employer failed to do so; and

• You refused to work in “good faith.” This means that you must genuinely believe that an imminent danger exists; and

• A reasonable person would agree that there is a real danger of death or serious injury; and

• There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Workers should take the following steps:

• Ask the employer to correct the hazard, or to assign other work;

• Tell the employer that you won’t perform the work unless and until the hazard is corrected; and

• Remain at the worksite until ordered to leave by your employer.

Contractual Rights

The first important aspect to consider here are your contractual rights, which are described in Article 27.4 of our contract:

Refusal to Perform Allegedly Unsafe Work. If an employee claims that an assigned job, or assigned equipment, is unsafe or might unduly endanger his/her health, and for that reason refuses to do that job or use the equipment, the employee shall immediately give, in writing, his/her reasons for this conclusion to his/her supervisor. Where a health and safety determination has already been made, the supervisor shall contact EHS [Environmental Health and Safety] to assure that the prior determination still applies. If no determination exists, the supervisor shall request EHS to make an immediate determination as to the safety of the job or equipment in question.

What the contract makes clear is that the employee needs to put their concerns in writing to their supervisor. It is then incumbent upon that supervisor to work with EHS to make a determination whether the work is safe. That explanation should be given in writing and he employee would be given direction on whether to do the work or not.

This contract language usually applies to situations that are much more cut and dried than working during a pandemic, such as when a manager asks that an employee in Facilities do a task on the roof of a building but the employee isn’t given any safety equipment to do the task. The situation we are likely to encounter in the next few weeks during the COVID-19 response is around front-line and essential employees being asked to do patient care without proper PPE; the CDC and many medical boards have pulled back their own safety requirements in anticipation of this. All that said, our union argues that an employee being asked to work with a COVID-19 patient without proper PPE could potentially invoke this language.

Legal Rights

If an OHSU employee believes they are working in conditions that are unsafe or unhealthful due to COVID-19, Local 328 recommends that they first bring the safety and health concerns to the employer's attention, if possible — it would be best if this could be documented in writing (e.g., email) or in the presence of a witness if it’s done verbally.

After the worker has brought the concern to the employer, if the employer fails to eliminate the hazard, an OSHA complaint can be filed. The employee should not leave the worksite merely because a complaint was filed. If (a) the working condition clearly presents a risk of death or serious physical harm, (b) there is not sufficient time for OSHA to inspect and, where possible, (c) the worker has brought the condition to the attention of the employer, the worker may have a legal right to refuse to work in a situation in which they would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

If you start this process, please call the AFSCME SMART Center at (844) 758-6466 to make Local 328 aware.

If the employer retaliates against the worker for refusing to perform the dangerous work, the employee should contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA, call (800) 321-6742 and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

Taking Action Collectively

In these situations, the best thing workers can do to protect each other is to act collectively when possible. This adds a layer of protection to this process, as it will become a group action done as union members. That is not to say it will nullify any risk, but it will be helpful.

The most important thing you can do right now is report unsafe activity to Local 328 through our AFSCME SMART Center and your stewards and staff reps. We want to get ahead of these issues as much as possible to prevent this scenario from needing to take place.

That said, we feel it is important for members to understand your rights. You are more than your job — you have families and lives outside of work. We do not live in a society where you have to trade your life for another’s because you are a health-care worker and have been ordered to do unsafe work. The sacrifices we are already making and the risks we are already enduring are noble enough.

**“you” refers to the worker