In the world of labor law, one standard that has stood the test of time is “Work now, grieve later,” with the only exceptions being in cases where a supervisor’s directive is either illegal or unsafe. With the uncertainty created by the COVID-19 pandemic, that standard has been tested more than possibly ever before. Employees who are on the front lines don’t wish to expose themselves to the virus while employers, believing they’ve done enough to protect employees, still need work to be done.
Such was the case in Hennepin County and AFSCME Council 5, Local No. 34. In April 2020, the grievant, a Case Management Assistant in the County’s Electronic Home Monitoring (“EHM”) program, voluntarily signed up to be fit-tested for an N-95 mask, and became one of a few individuals in his department fitted with a mask who could perform Preliminary Breath Tests (“PBTs”) for the employer. Later, the grievant made requests to his union to seek hazard pay for being frequently exposed to people diagnosed with COVID-19.
In June 2020, the County and the union met to discuss the possibility of hazard pay for individuals working in the grievant’s unit, but were unable to come to an agreement. In late June, the employee was notified that a client would be coming to his office to receive a PBT, and he was the only employee who had been fitted for an N95 mask to perform the test. The grievant stated he was uncomfortable with his mask and would not perform the PBT due to his discomfort. He called his supervisor, who directed him to perform the test, and the grievant responded he “wanted to make a statement” by not administering the PBT, due to the lack of agreement on hazard pay for people in his position. The grievant testified that such a statement wasn’t made, but that he had made similar statements to co-workers.
The grievant sent an e-mail to his supervisors stating he did not administer the PBT to the client due to “health and personal reasons.” The grievant was suspended for two days for his conduct.
In his decision upholding the discipline, Arbitrator Miller noted that the grievant volunteered to be fitted for an N-95 mask, and had previously administered PBTs to clients prior to this incident during the pandemic. He then determined that the question of whether the grievant was ordered to perform the test did not need to be resolved, because the grievant “simply decided on his own volition…that he had no intention of administering the PBT to the client.”
The arbitrator then placed the burden on the grievant to show that he could not perform the test for “health and personal reasons.” Not surprisingly, the grievant had little evidence to support the idea he made his health concerns known to management prior to that day, after the union could not come to an agreement with the County on hazard pay.
Arbitrator Miller found that the grievant only had a personal reason (lack of hazard pay) for declining the work, and that reason was not a legitimate excuse for declining work. He found that the outright insubordination of the employee warranted an upward departure in discipline, and upheld the employer’s decision.
The grievant in this situation did himself no favors, and that led to clear cut grounds for discipline. However, there are many less black-and-white situations, especially in the middle of a pandemic, that can leave the employer questioning whether an employee can be ordered to perform certain work without questioning the safety of the operation. It is important for employers to do everything they can to make certain employees are safe in the workplace, and if the question arises about whether work can be done safely, a discussion should take place, typically involving a union representative, on whether the work can be performed.
If you, or your organization, need assistance in navigating difficult questions on employee safety and insubordination, contact Wiley Reber Law, for labor advice that works.