The Right to Refusal to Work Executive Order Under Covid-19

May 15, 2020  |  Scott M. Lepak

While the Minnesota Governor’s May 13, 2020 Executive Order related to the Safe Reopening of Minnesota’s Economy is generating considerable headlines and discussion, it is notable that there was an Executive Order issued the same day that also warrants attention by employers.

In Executive Order 20-54, the Minnesota Governor ordered that employers must protect workers from unsafe working conditions and retaliation during the COVID-19 Peacetime Emergency. Employers are forbidden from discriminating or retaliating in any way against a worker communicating orally or in writing with management about occupational safety or health matters related to COVID-19, including asking questions or expressing concerns.

This Executive Order also specifically applies existing law related to a refusal to work under certain conditions to the COVID-19 pandemic. Workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm. This includes a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19. Employers must not discriminate or retaliate in any way against a worker for the worker’s good faith refusal to perform assigned tasks if the worker has asked the employer to correct the hazardous conditions, but they remain uncorrected. These situations should be immediately reported to the Minnesota Department of Labor and Industry (“DLI”).

Reasonable accommodations related to COVID-19 for such employees may include, but are not limited to, adjusting schedules or workstations, allowing employees to work from home, or permitting use of leave.
The Executive Order also provides that employers must not discriminate or retaliate in any way against any worker for wearing gloves, a cloth face covering, eye protection, or other protective gear which the worker has personally procured and reasonably believes will protect them, their coworkers, or the public against COVID-19 in the course of their work, provided that the protective gear which the worker has personally procured does not violate industry standards or existing employer policies related to health, safety, or decency. Employers may require use of employer-provided protective gear that meets or exceeds protective gear procured by employees.

Scott Lepak is a shareholder practicing in employment law. His recent practice has included a significant focus on COVID-19 planning and the application of the various federal and state requirements to Minnesota businesses.