Facing anthrax threat, employees have limited right not to work

With deadly anthrax bacteria turning up in more and more federal workplaces, a little-known right has gained sudden importance: In extreme circumstances, federal employees have a limited right to refuse a manager's order if the order would place employees in imminent danger, under a federal regulation and case law. With two Postal Service workers dead and anthrax spores discovered at Postal Service facilities, the State Department, Justice Department, White House, Supreme Court and the Senate, the threat of catching a deadly disease at work has alarmed many federal workers. Postal workers at several facilities have walked off the job to protect themselves from possible infection by the bacteria. While the right of federal workers to refuse to work because of such an emergency has never been tested, a review of Occupational Safety and Health Administration regulations, Merit Systems Protection Board rulings and Federal Labor Relations Authority decisions shows that employees have a basic right to disobey orders that would place them in imminent danger. But that right is severely circumscribed, so workers who refuse to work because of concerns for their health and safety can still be fired for insubordination. OSHA's regulations say that, in the federal government, there is "the right of an employee to decline to perform his or her assigned task because of a reasonable belief that, under the circumstances the task poses an imminent risk of death or serious bodily harm coupled with a reasonable belief that there is insufficient time to seek effective redress through normal hazard reporting and abatement procedures" (29 CFR 1960.46(a)). The OSHA regulation mirrors a 1980 Supreme Court decision (Whirlpool Corp. v. Marshall, 445 U.S. 1) in which the court found that private sector employees can refuse to do work that would place them in imminent danger. In general, however, federal employees must follow their supervisors' orders, according to Merit Systems Protection Board rulings. "An employee does not have the unfettered right to disregard an order merely because there is substantial reason to believe that the order is not proper," the board said in Gomez v. Department of Agriculture (63 MSPR 36, 37-39, 1994). "He must first comply with the order and then register his complaint or grievance, except in certain limited circumstances where obedience would place the employee in a clearly dangerous situation." The so-called "obey then grieve" rule is frequently cited in cases in which employees say they refused to work because of concerns about their health and safety. In other words, employees should generally follow orders and then complain through the appropriate channels afterwards. When confronted with unsafe working conditions, an employee should let his or her supervisor know about the problem and discuss solutions before refusing to work, MSPB case law suggests. Employees can request safety inspections as well. Failing to take those steps can hurt employees' chances of showing that refusing to work was their only option.

"The employee who refuses to perform work for a health-related reason must show the reasonableness of his concerns," the board said in Parker v. Department of Interior (4 MSPR 97, 1980). "The defense will…likely fail if the employee fails to make known to a supervisor his fear of harm," the board said in Taylor v. USPS (41 MSPR 374, 1989). The Federal Labor Relations Authority has found in several cases over the last 20 years that the OSHA regulation does not prevent managers from issuing orders or from disciplining employees who refuse to obey orders. Employees can disobey orders only if the danger imposed by them meets three criteria:

• The threat is imminent.
• It poses a risk of death or serious bodily injury.
• It cannot be abated through normal procedures.

The authority added that employees would still risk disciplinary action because a manager may not agree with their danger assessment. An employee who refused to work and was then disciplined could file a grievance protesting the discipline. Ultimately, an arbitrator could decide whether the employee or the manager was right. Employees in bargaining units should check their labor relations agreements to see if similar provisions cover them. William Bransford, a Washington attorney who specializes in federal employment law, said safety and health cases are so fact-specific that it would be difficult to guess how an employee's refusal to work in an area exposed to anthrax would play out in the grievance process or at MSPB. Bransford added that federal managers should do everything they can to create safe working environments for their employees. "Managers should recognize their responsibility and get expert advice to make sure their employees are safe in carrying out their work," Bransford said. "A manager who fails to do that is setting himself up for trouble. A manager could be disciplined, marked down or investigated by the inspector general because he placed employees in unsafe conditions."