COVID-19 impacts business operations in ways that change daily: unemployment compensation, sick leave, and employee retention are a few of the areas receiving regular updates.
Employers must also remember their obligations to employees who raise safety concerns, especially relating to the COVID-19 threat to health and safety. Employee safety initiatives have been focused on identifying and addressing employees who have been possibly exposed to or infected with the novel coronavirus and sanitizing work areas.
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.
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 news release can be found here.
The current pandemic has made every workplace vulnerable to exposure, and employers must consider COVID-19 safety measures even if the business does not typically expose workers to health and safety hazards. 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. If you have concerns about exposure under Section 11(c), Jackson Kelly’s team of Workplace Health and Safety attorneys are happy to address specific questions and provide guidance during this confusing time.