As of August 8, 2021, the Occupational Safety and Health Administration (OSHA) has received more than 5,558 whistleblower complaints related to COVID-19 since the start of the pandemic (and State Plans have received an additional 2,118 complaints). Notably, President Joe Biden has made it clear that OSHA enforcement focused on “violations that put the largest number of workers at serious risk [of COVID-19] or are contrary to anti-retaliation principles” is a priority of his administration. To that end, on March 12, 2021, OSHA issued a new national emphasis program (NEP) “targeting specific high-hazard industries or activities” where the hazard of contracting the virus that causes COVID-19 is prevalent. The NEP also aims to protect workers from retaliation. The NEP, which took effect immediately, will remain in force “for no more than 12 months” from March 12, 2021. Similarly, OSHA’s COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry mandates antiretaliation measures.
In addition, the recently enacted American Rescue Plan Act allocated “[n]ot less than” $100 million to OSHA “to carry out COVID-19 related worker protection activities” and provided funds for the U.S. Department of Labor’s Office of Inspector General to oversee those efforts. Employers may find the following answers to some frequently asked questions helpful in light of the Biden administration’s focus on COVID-19 retaliation complaints.
Question 1. What are examples of unlawful retaliation by employers in response to COVID-19 concerns raised by employees?
Answer 1. Section 11(c) of the Occupational Safety and Health (OSH) Act of 1970 prohibits employers from retaliating against employees because they report unsafe and unhealthful working conditions, including complaints of such conditions during the coronavirus pandemic, whether internally or to OSHA. Acts of retaliation can include firings, demotions, making threats, denials of overtime or promotion, reductions in pay or hours, or other actions that would dissuade a reasonable person from making such reports. The COVID-19 ETS for healthcare further requires covered employers to inform employees of the protections required by the ETS and its anti-retaliation provision.
Q2. In addition to raising concerns with OSHA, what other forms of relief might employees have? For example, do employees who have been discharged for raising COVID-19 concerns have a private right of action for wrongful termination, or would they have to file complaints with OSHA?
A2. The OSH Act does not provide for a private right of action allowing employees to file suit. Instead, employees may file administrative complaints with OSHA. If OSHA determines that an employer retaliated in violation of the OSH Act, the secretary of labor may then sue in federal district court to obtain relief. If OSHA determines that retaliation did not occur, it will dismiss a complaint. Employees may also have other forms of relief. For instance, most states have whistleblower laws that protect employees who report violations of the law by their employers. The pre-suit requirements and statutes of limitation vary by state law.
Q3. How might employers investigate employees’ claims that they’ve been retaliated against for raising COVID-19 concerns, or warn or discipline managers who might have retaliated against the workers?
A3. An effective investigation starts with an employer’s personnel policies. Accordingly, it may be helpful for employers to address workplace safety and health in their handbooks. Employers may want to implement general handbook safety and health policies that include information regarding the responsibility of every employee to work safely, follow all safety and health procedures applicable to their jobs, report potential safety and health hazards in the workplace, and report any work-related accidents, injuries, and illnesses as soon as reasonably possible. Employers may also want to consider including reporting procedures and nonretaliation provisions in their policies and also consider striving to create workplace cultures where raising such concerns is encouraged. (Employers may want to keep more detailed safety procedures covering job tasks separately from the handbook.)
OSHA recommends that “[w]hen retaliation is reported, employers should investigate the claim promptly and thoroughly, utilizing an established retaliation response system.” OSHA also recommends that employers treat “all reports of retaliation seriously,” keep the investigations confidential to the extent reasonably possible, and “[b]e transparent to the employee alleging retaliation about how investigations are conducted.” Employers may want to keep in mind that every supervisor can be trained to react sensitively to complaints and to bring complaints to the attention of the human resources department or other appropriate personnel immediately.
Q4. What training pointers may employers want to consider providing to managers to prevent retaliation?
A4. Employers may want to remind managers that employees are protected from retaliation when they raise concerns regarding unsafe or unhealthful working conditions, give examples of actions that could be found to be retaliatory, and provide them with copies of any related company policies and procedures explaining how to respond to complaints. Communicating with employees regularly regarding COVID-19 protocols and how to report concerns internally may provide employers with an opportunity to resolve concerns before an employee looks to OSHA for relief.
The author of this article was previously quoted on this topic on SHRM Online.