"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."