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Law360 (May 26, 2020, 5:43 PM EDT )
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| Steve Pearlman |
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| Lloyd Chinn |
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| Harris Mufson |
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| Pinchos Goldberg |
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| Caroline Guensberg |
The following analyzes the various types of COVID-19-related whistleblower claims we are seeing and can expect to see much more of in the future, and offers steps employers can take to minimize the risks.
A Deluge of Health and Safety Whistleblower Retaliation Claims
Claims based on complaints about workplace health and safety are making headlines as employees throughout the country, especially those who work in the health care and manufacturing industries, allege that they have been fired for voicing COVID-19-related health concerns, such as a lack of adequate personal protective equipment.
While many of the claims that already have been filed involve employees in essential businesses, employers can expect to see claims in settings where such health and safety concerns are less common (such as professional services firms) as businesses reopen and employees begin to return to the workplace. Here are the types of claims employees are filing and/or are apt to file.
Occupational Safety and Health Act
Since the COVID-19 pandemic began, OSHA has been inundated with claims of violations of the Occupational Safety and Health Act. In fact, it was reported that, between January and early April, OSHA received over 3,000 complaints related to the coronavirus.[1]
While OSHA has not issued new rules specific to the coronavirus, several existing OSH Act provisions and regulations are of particular relevance. They include the OSH Act's general duty clause, which requires employers to provide a workplace "free from recognized hazards,"[2] and Title 29 of the Code of Federal Regulations Section 1910, which requires the use of gloves, eye and face protection, and respiratory protection by employees in certain industries.
In early April, in light of the uptick in complaints, OSHA issued a press release "reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic."[3]
Despite OSHA's efforts to remind employers of their obligations not to retaliate against employees who report health and safety concerns, on May 6, the U.S. Department of Labor's Office of the Inspector General announced that it will be conducting "an audit of the OSHA COVID-19 whistleblower complaint process."[4] The audit was scheduled to begin the week of May 11.
The prohibition against retaliation is set forth in Section 11(c) of the OSH Act,[5] which protects employees who make a reasonable, good faith complaint regarding a violation of the statute or its regulations. Section 11(c) does not provide for a private cause of action, but the secretary of labor can sue on the employee's behalf and obtain relief including reinstatement, back pay with interest, compensatory damages, punitive damages and other appropriate relief.
NLRA
In the midst of the COVID-19 pandemic, the National Labor Relations Board issued a decision in Maine Coast Regional Health Facilities providing that health care workers who are terminated for voicing concerns about working conditions in health care facilities may have a retaliation claim under the National Labor Relations Act.[6] If it finds a violation of the NRLA, the NLRB is authorized to issue a cease-and-desist order and "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the statute]."[7]
The case involved a hospital employee who was terminated after writing a letter to the editor of a local newspaper in which she expressed concern regarding staffing shortages at the hospital. The NLRB held that the employee was terminated in violation of Sections 8(a)(1) and 8(a)(3) of the NLRA,[8] which prohibit employers from retaliating against an employee for, among other things, participating in concerted activities.
State Law Claims
Employees in a variety of jurisdictions may also bring health and safety claims under state whistleblower protection statutes. California, New York, New Jersey and Virginia prohibit retaliation against employees for reporting a violation of health and safety laws, regardless of the industry in which they work.[9] However, certain of these state whistleblower statutes, such as New York Labor Law Section 740, have fairly limited application.
Further, many states, including California, New York, New Jersey, Illinois, Michigan, Texas and Wisconsin, provide whistleblower protections that are specific to health care workers.[10] Generally, these statutes protect employees of hospitals and other health care facilities from retaliation based on reports of or objections to activities that pose a risk to the health and safety of patients or the public.
In addition to the protections that are already in place in New York, workers in New York City may soon be able to bring claims under the proposed Essential Workers Bill of Rights. If enacted, that legislation will, among other things, prohibit employers from terminating essential employees without just cause.[11]
Common Law Retaliatory Discharge Claims
Employees may also bring claims for retaliatory discharge in violation of public policy — a common law cause of action that is recognized in Washington, D.C., and over half of the states in this country. Significantly, such claims may present a risk of punitive damages. Notably, there is no such claim available under New York law.
Some of the states that recognize this cause of action have found that employee complaints about workplace health and safety implicate a public policy concern. For instance, in Wheeler v. Caterpillar Tractor Co.,[12] the Illinois Supreme Court recognized a common law retaliatory discharge cause of action where a plaintiff claimed he was discharged for refusing to engage in activity that allegedly violated safety-related regulations.
Similarly, in Shaw v. Superior Court,[13] the California Supreme Court held that a hospital employee who alleged she was terminated for complaining about the hospital's quality of care could sustain a common law retaliatory discharge claim.
A Trend: Multiple Statutes Now Prohibit Retaliation for Taking COVID-19-Related Leave
Recently enacted federal, state and local laws, including the Families First Coronavirus Response Act, or FFCRA, are already becoming a source of retaliation claims based on requests for leave associated with COVID-19. Plus, employees can be expected to bring claims alleging retaliation for requesting COVID-19-related accommodations under the Americans with Disabilities Act.
FFCRA and ADA
The FFCRA provides employees with federal paid leave and expanded family and medical leave for reasons related to the coronavirus and prohibits employers from retaliating against employees for taking such leave.[14] Within weeks of the enactment of this law, two cases were filed in federal court where employees alleged they were retaliated against for taking leave according to the law's provisions.
In Jones v. Eastern Airlines LLC,[15] an employee alleged she was discharged for requesting leave to care for her son while his school was closed because of the COVID-19 pandemic. Similarly, in Robtoy v. The Kroger Co.,[16] an employee alleged her employment was terminated in violation of the FFCRA after she requested leave because she had COVID-19-like symptoms and was ordered by a doctor to self-isolate for two weeks.
Employees may also attempt to pursue claims under the ADA,[17] claiming they suffered retaliation for requesting an accommodation, such as working remotely, because they have a disability that puts them at a higher risk of experiencing severe symptoms if they contract coronavirus (e.g., diabetes).
Local and State COVID-19 Anti-Retaliation Measures
Local ordinances and state laws prohibiting retaliation against any employee for taking coronavirus-related leave are percolating. Chicago joined this growing trend on April 22, when Mayor Lori Lightfoot introduced the COVID-19 Anti-Retaliation Ordinance, which, if enacted, would prohibit Chicago employers from retaliating against employees for obeying a public health order requiring them to remain at home as a consequence of COVID-19.
This proposed ordinance would provide for recovery including damages equal to three times the amount of wages the employee would have been owed had the retaliatory action not taken place, actual damages caused directly by the retaliatory action, and costs and reasonable attorney fees.
Similar protections have been established through emergency orders or rules in New Jersey, Michigan and Washington; those states prohibit employers from disciplining or terminating employees for requesting or taking time off after contracting or, in some circumstances, being exposed to COVID-19.[18] Notably, the New Jersey law does not contain a sunset provision, meaning that its protections can be expected to continue beyond the period of the coronavirus pandemic.
Steps Employers Should Consider to Minimize the Risk of Whistleblower Retaliation Claims
Employers should get in front of these risks and consider the following steps.
First, develop a written pandemic plan regarding the steps the employer is taking to comply with OSHA requirements. Second, update anti-retaliation policies to cover complaints related to COVID-19 safety and health issues.
Employers should also: provide related training, including training of supervisors on how to appropriately respond to and escalate complaints; maintain a channel for employees to report health and safety concerns, alert employees to the availability of complaint mechanisms, and allow employees to complain anonymously; document employee health and safety complaints in detail; and closely vet the reasons for taking any adverse action against an employee who complained of health and safety violations to ensure the absence of retaliation.
Steve Pearlman, Lloyd Chinn and Harris Mufson are partners at Proskauer Rose LLP. They co-lead the firm's whistleblowing and retaliation group.
Pinchos Goldberg and Caroline Guensberg are associates at the firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.washingtonpost.com/business/2020/04/16/osha-coronavirus-complaints/.
[2] 29 U.S.C. § 654(a)(1).
[3] https://www.osha.gov/news/newsreleases/national/04082020.
[4] https://www.oig.dol.gov/public/oaprojects/COVID-19%20Whistleblower%20Engagement%20Memo_050620.pdf.
[5] 29 U.S.C. § 660(c).
[6] Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276 (March 30, 2020).
[7] 29 U.S.C. § 160(c).
[8] 29 U.S.C. § 158(a).
[9] See Cal. Lab. Code §§ 6310 and 6311, N.Y.L.L. § 740, J.S.A. § 34:19-3(c), and VA Code § 2.2-3011.
[10] See Cal. Health & Saf. Code § 1278.5, N.Y.L.L. § 741, MCL 333.20180, Texas Health & Safety Code § 161.134, Washington Code § 43.70.075, and WI Stat. § 146.997.
[11] Int. 1923-2020.
[12] 108 Ill.2d 502 (1985).
[13] 2 Cal. 5th 983 (2017).
[14] Pub.L. 116–127 § 5104.
[15] LLC, 20-cv-1927 (E.D.Pa.).
[16] 20-cv-00173 (N.D. Ind.).
[17] 42 U.S.C. § 12203.
[18] See N.J. Assembly Bill 3848, Michigan Executive Order 2020-36, and Washington Proclamation 20-05.
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