While businesses around the country begin to reopen in a world still overrun by COVID-19, one legal risk to employers looms over all others—the whistleblower.
The scenarios are endless. The employee who complains that his co-workers are not wearing masks at work … or that the company is not enforcing social distancing … or that her officemate is coughing at her desk … or that high-contact surfaces are not being disinfected with enough frequency.
At least three laws protect these employees from retaliation, and could give rise to employer liability in the event of a termination of other adverse action on the heels of complaints (or other protected activity):
1. OSHA. The ongoing pandemic did not stop workplace whistleblower protections under OSHA. If anything, the pandemic has heightened these protections.
In fact, OSHA put out a press release in April that clearly stated:
“Any worker who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”
OSHA requires employers to provide safe and healthy workplaces for their employees. Employees who report otherwise to OSHA or their employers are protected from retaliation.
2. The National Labor Relations Act (NLRA) covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including safety issues. It also covers mass protests, such as employees walking off the job in protest of safety issues.
An employer’s first instinct might be to fire the instigators (as employers such as Amazon are accused of doing). That, however, would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity.
3. State orders. Each state’s stay-at-home or reopening order contain a different variety of enforcement mechanisms. For example, my state, Ohio, enforces its Stay Safe Order through local health departments and is relying on employees to file complaints for violations committed by their employers. Violations are punishable as a second-degree misdemeanor.
While these state orders may not contain a specific anti-retaliation provision, state common law still might. For example, many states prohibit retaliatory discharges that jeopardize a specific public policy of the state. These orders would certainly qualify.
The bottom line: Legality or illegality aside, retaliation for employees complaining about safety concerns is just a bad look for your business. Instead of punishing employees, let’s take their concerns seriously and communicate to them the efforts we are taking to keep them safe and healthy. Our goal as employers should be returning our employees to work as safely as possible, not silencing those who dare to speak out when they perceive something different.
Source: Employment Law, June 2020 | Jon Hyman