COVID-19 Whistleblowers Have New Rights in Philadelphia

Philadelphia recently enacted a new city ordinance protecting whistleblowers who report unsafe workplace conditions related to COVID-19.

The Essential Workers Protection Act (EWPA), signed by Mayor Jim Kenney on June 26, 2020, prohibits employers from retaliating against workers for speaking out about unsafe conditions caused by noncompliance with city and state emergency health orders and regulations. The act appears as a new chapter in Title 9 of the Philadelphia Code, entitled “Chapter 9-5000. Employee Protections in Connection with COVID-19 Emergency Health Order.” Under the new law, all employers in the city of Philadelphia must comply with all applicable requirements of public health orders addressing COVID-19 safe workplace practices, and may not retaliate against employees who (1) refuse to work in unsafe conditions or (2) make a protected disclosure under the act.

Refusing to Work in Unsafe Conditions

Philadelphia employers may not take adverse action against any employee who “refuse[s] to work in unsafe conditions if the employee reasonably believes that the employer is operating in violation of a COVID-19 public health order in a manner that has created the unsafe condition.” (Note: Both the city of Philadelphia and Commonwealth of Pennsylvania have issued public health orders associated with COVID-19.) The employee also must notify the employer of the unsafe condition in order to claim this protection.

The employee may not refuse to work, however, if (1) the employer “provides a reasonable alternative work assignment that does not expose the employee to the unsafe condition,” or (2) “upon inspection by the Philadelphia or Pennsylvania Department of Health the [employer] proves it is compliant with all public health orders addressing safe workplace practices.”

Making a Protected Disclosure Under the EWPA

Philadelphia employers also may not take adverse employment action against any employee for making a “protected disclosure.”

The EWPA defines a protected disclosure as: “A good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence a violation of a COVID-19 public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation.”

In short, Philadelphia employers may not retaliate against employees who report that the business is operating in a manner contrary to local or state COVID-19 public health orders.

Philadelphia employers may want to take particular care in handling employee workplace concerns that may fall under the EWPA. The act creates a private right of action for employees and a rebuttable presumption of retaliation if an employee who engages in protected conduct suffers an adverse employment action, such as suspension or termination, within 90 days of such conduct. This presumption also applies to seasonal workers who work fewer than 90 days if the employer “fails to rehire [such workers] at the next opportunity for work in the same position.” A prevailing employee may be awarded reinstatement, back pay, compensatory damages, and attorneys’ fees and costs. The employee may also “seek civil penalties on behalf of the City for each day in which a violation occurs.”

Ogletree Deakins will continue to monitor and report on developments concerning the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.