Maybe. The Occupational Safety and Health Act of 1970 (the “OSH Act”) gives private sector employees the legal right to refuse a work assignment if they have a good faith, reasonable belief that there is a real danger of death or serious injury arising from a hazardous condition in the workplace, the employer has been made aware (to the extent possible) of the hazardous condition and failed to correct it, and there is insufficient time, due to the urgency of the situation, for the Occupational Safety and Health Administration (“OSHA”) to conduct an inspection. In general, employees should be cautious about exercising this right because the circumstances in which it applies are narrow, and it is not yet clear, given the novel and emergent nature of the current pandemic, how the law will apply to employees who refuse to work because of a risk of infection from COVID-19.
However, a number of states, counties, and municipalities, including the state of Colorado, have issued orders prohibiting individuals from leaving their homes for non-essential reasons. Under Colorado law, an employer who fires an employee for not reporting to work in compliance with one of these directives may be liable for wrongful discharge in violation of public policy.
In addition, the federal Emergency Paid Sick Leave Act (“EPSLA”), effective April 1, 2020, requires covered employers (public agencies or private employers with fewer than 500 employees) to provide up to 80 hours of paid sick leave for certain reasons related to the COVID-19 pandemic, such as an employee is subject to “a federal, state, or local quarantine or isolation order related to COVID-19,” or the employee “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” The new law prohibits an employer from discharging, disciplining, or otherwise discriminating against an employee who takes leave in accordance with the act.
On March 25, 2020, Colorado Governor Jared Polis issued a state-wide stay-at-home order beginning at 6:00 a.m. on March 26, 2020 and remaining in effect through 11:59 p.m. on April 11, 2020. The full text of the order is available at: https://drive.google.com/file/d/1O1EDCY6-A6QBKxzDImCSF8bBBdOOI3Km/view.
A number of Colorado cities and counties have also issued stay-at-home orders with slightly different exceptions and expiration dates. For a list of cities/counties currently subject to stay-at-home orders, see: https://www.9news.com/article/news/health/coronavirus/colorado-cities-counties-shelter-in-place-orders/73-755635a8-4e68-49dc-8beb-60fac9325726.