Refusing Work To Avoid Serious Injury or Death: An Empirical Study of Legal Protections Before and During COVID-19
I present data on court and administrative rulings involving employees who were disciplined or quit after refusing to work due to concerns about death or injury. My sample of 109 pre-pandemic cases from 1944–2020, and its comparison to twelve COVID-19 cases in 2020 and 2021, shows an emerging picture of new forms of work refusal. The cases before COVID-19 were concentrated in mining, construction, and transportation. In contrast, the COVID-19 cases span new occupations in social services, education, law, healthcare, protective services, food preparation, and building cleaning. Before COVID-19, employees lost most work refusal cases because laws such as the National Labor Relations Act, Occupational Safety Health Act, and others narrowly protect them from employer retaliation. In the past year, the Emergency Paid Sick Leave Act afforded workers broader protections; however, it expired at the end of 2020. I conclude that work refusal laws are out of date in today’s workplace because they apply mostly to work refusal in mines, construction, and trucking—male-dominated workplaces, with 10% to 30% female workers. These industrial settings do not reflect changes in the economy that have expanded jobs in service and office sectors or the growth of gig work that falls outside the protections of work refusal statutes.
Michael H. LeRoy
Refusing Work To Avoid Serious Injury or Death: An Empirical Study of Legal Protections Before and During COVID-19,
49 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol49/iss1/1