Employers are facing multiple challenges in response to the COVID-19 pandemic – including an increased risk of whistleblower and retaliation claims from employees who allege they were disciplined or discharged for complaining about health or safety concerns relating to the coronavirus.

Employees who have continued to work in essential businesses are increasingly filing complaints regarding personal protective equipment, social distancing, and other health and safety measures during the pandemic. At the same time, many employers are faced with the reality of changing or reducing hours, cutting pay, or terminating employees due to the widespread decline in business activity. The combination of increased health and safety complaints with a simultaneous escalation of employment actions that many employers must take due to business necessity has also lead to an increase in retaliation claims being filed under state and federal law. OSHA reports that it has received hundreds of whistleblower complaints over the past month relating to the coronavirus, including claims that employees were disciplined or terminated after reporting allegedly unsafe work practices or conditions.

Health and Safety Complaints – and Retaliation

At the federal level, OSHA is responsible for enforcing a wide variety of anti-retaliation provisions under 23 separate whistleblower statutes. While many employers are familiar with claims under Section 11(c) of the Occupational Safety & Health Act, which broadly protects employees from exercising a variety of rights under the Act, remedies under Section 11(c) are limited, a private cause of action is not available to the complaining party, and a worker must file the complaint within 30 days of an adverse job action. However, OSHA also enforces additional statutory provisions that may provide more expansive remedies to a complaining party who prevails—including attorney’s fees and punitive damages in some instances.

Beyond the Section 11(c) claims that may be filed with OSHA, employers can also face additional exposure and risks when employees use alternative statutory remedies—for example, under §31105 of the Surface Transportation Assistance Act (STAA)—to raise complaints about an employer’s response to COVID-19.

The risk for employers under certain federal anti-retaliation laws is also increased because a lower causation standard—the “contributing factor” standard—may be applicable in some instances. Specifically, under certain federal anti-retaliation laws a complaining party may establish that they have a viable claim that should be heard by proving, among other things, that a retaliatory motive played a “contributing factor” in the adverse employment decision. In addition, under OSHA, complainants generally do not need to show the alleged violation they complained about actually took place. A viable retaliation claim requires only that they had, among other things, a “good faith” basis for making the allegation in the first instance, which is a low bar to clear.

Because not all statutes are created equal, in a retaliation case brought by an employee complaining about health and safety issues relating to COVID-19, the precise burden of proof will depend upon the law used to pursue the claim.

Moreover, federal law is not the only source of protection for employees pursuing complaints related to health and safety practices. A majority of states recognize some form of a wrongful discharge claim under anti-retaliation statutes or under common law, which is based on court decisions rather than a statute or regulation. Employees may be entitled to significant damages if they prove that an employer took adverse action against them because they raised a health and safety concern, and the remedies vary from state to state.  

Practical Considerations for Employers

In this current environment in which employees have increasingly raised retaliation claims related to health and safety complaints, employers should be particularly vigilant to enforce anti-retaliation policies and procedures. Some practical considerations include:

• Encourage employees to report health and safety concerns. Ensure that employees have multiple avenues to immediately raise health and safety concerns, and that the various options to raise concerns are clearly communicated and obvious.

• Employees should never be disciplined or terminated because they raised or escalated complaints about a potential violation of health and safety laws or procedures, including concerns regarding the employer’s response to COVID-19. There may be independent, non-retaliatory reasons for taking adverse action against an employee who also previously raised health and safety concerns, but any decision regarding the adverse action should not take into account or be influenced by the health or safety complaint.

• If independent reasons justify disciplinary action against an employee who recently raised health or safety concerns, the employer should ensure the reasons are properly documented, consistent with the company’s policies and procedures, and that other employees who have engaged in similar conduct—but who have not complained of health and safety concerns—received the same disciplinary action.

• In turn, be certain that the specifics of health and safety complaints are appropriately documented – including the time and date, the recipient of the complaint, and the specifics of the concerns that have been raised.

• Confirm and update the company’s procedures for referring or escalating health and safety complaints to the appropriate department or individual, and for investigating and addressing concerns that have been raised.

• Take health and safety complaints seriously. Remind front-line supervisors and others to objectively listen to concerns that have been raised, and to appropriately refer and escalate the concerns consistent with the company’s procedures.

• Review and update the company’s policies and procedures that prohibit retaliation, and consider setting aside additional training time now to help reinforce the company’s anti-retaliation rules, and to help prevent retaliation claims from arising.