By: Michael T. Cimino and
Localized outbreaks of COVID-19 have plagued large industrial employers. A special focus has been placed on meat processing facilities, as plants across the country have become hotspots due to close quarters working conditions and allegations of insufficient responses by management in excluding ill workers and providing well workers with appropriate personal protective equipment (“PPE”). These facilities, are finding themselves subject to both agency enforcement and private causes of action for alleged violations of the legislative and regulatory protections for employees who engage in certain whistleblower activities. These and other industrial “hotspots” for exposure and transmission raise questions for employers on responding to employee complaints and reacting to whistleblower actions.
OSHA’s Whistleblower Protections
Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) (29 U.S.C. §660(c)) provides whistleblower protections to any employee who files a safety or health complaint with the Occupational Safety and Health Administration (“OSHA”), raises a health and safety concern with their employers, participates in an OSHA inspection, or reports a work-related injury or illness. This includes workers in states that have state health and safety plans such as California, Kentucky, or Virginia. In fact, in state plan states, employees can make complaints with both federal OSHA as well as the appropriate state agency through a process known as “dual filing.” Employers cannot take adverse action against an employee for raising safety or health concerns. Adverse actions may include things such as: reduction in hours or pay; layoffs; denying overtime; or other actions that may seem to be in line with business needs during the current stay-at-home orders could be considered adverse action against employees who have made safety complaints. As of April 27, 2020, OSHA has received 859 whistleblower complaints.
OSHA’s Office of the Whistleblower Protection Policy (“OWPP”) and applicable state agencies will investigate complaints of discrimination or retaliation under 11(c) made to OSHA. If OWPP determines that there is sufficient evidence to support the 11(c) claim the Department of Labor, through their Solicitor’s Office will bring a case on behalf of the employee against the employer. This litigation can be complicated and expensive. On April 8, 2020 OSHA issued a news alert reminding employers that OSHA enforces whistleblower statutes across more than 20 industries and continues to investigate claims under those laws.
The Lawsuits Have Begun
Plaintiffs have filed several lawsuits against meatpacking facilities brought by, or on behalf of employees. These suits claim that the company was aware of the prevalence of the illness, failed to follow CDC and state guidance on protective equipment or social distancing. Lawsuits like RURAL COMMUNITY WORKERS ALLIANCE v. SMITHFIELD FOODS, INC. 2020 WL 1969164 (W.D.Mo.) filed on behalf of Smithfield employees in Missouri, claim that the company failed to follow the safety protocols enacted by the state public health agency or similar recommendations by the Centers for Disease Control (“CDC”). The lawsuit claims this failure created a public nuisance in creating a hotspot for disease spread and breached their duty to the workers to provide a safe workplace. The case is still pending, but similar lawsuits have been filed in Virginia and are expected in Colorado. Complaints have accused facilities of not maintaining worker spacing thus facilitating disease spread and failing to provide masks or making masking a consistent policy regarding masking. The lawsuits allege that when facilities have implemented fever testing, it has been inconsistent. Alternatively, employees have been allowed to circumvent the tests or continue to work regardless of the test results.
What These Lawsuits Could Mean And What You Can Do to Protect Yourself and Your Employees
On Tuesday April 29, 2020, the President weighed in by ordering meat packing plants to remain open under the Defense Production Act. This action has in effect created a new type of essential industry. Jackson Kelly has provided guidance on how to respond if your industry is deemed essential here.
These private lawsuits are being brought by workers organizations or unions on behalf of workers who are maintaining their anonymity. Employers need to assess how they can approach protective steps for employees returning to work as restrictions are beginning to relax across the country. While state and local guidance may be allowing more businesses to reopen and workers to return the CDC guidance remains unchanged. Employers are encouraged to develop comprehensive plans regarding protective equipment and responses to any reports of illness by employees. Jackson Kelly has provided a summary of best practices for continuing workplace operations from the Occupational Safety and Health Administration (“OSHA”) and other agencies here.
The lawsuits brought against the meat packing industry show every workplace is vulnerable to exposure, and employers must consider COVID-19 safety measures even if the business does not typically expose workers to infectious diseases. Showing good faith efforts to follow CDC and OSHA guidance for worker safety during reopening can help to protect employers against this type of claim. If employees raise legitimate concerns about how their safety and health is being protected, employers must document these complaints in accordance with company policy and ensure that employees do not suffer any adverse action or retribution for raising these issues. Jackson Kelly has provided guidance on anticipating and preventing discrimination claims relating to coronavirus here.
Lawsuits brought against employers, as well as reports of worker’s unwillingness to return to work, serve as a cautionary tale to all businesses. Employers need to assess how they can approach protective steps for employees returning to work as restrictions are beginning to relax across the country. Jackson Kelly has provided guidance to reopening businesses here.
If you have concerns about employee safety precautions or liability, Jackson Kelly’s team of Workplace Health and Safety attorneys are happy to address specific questions and provide guidance during this confusing time.