COVID-19 has created additional challenges for employers. Among those is the prospect of whistleblower claims brought by terminated employees. At the federal level, the Occupational Safety and Health Act (“OSHA”) requires employers to provide a place of employment that is “free from recognized hazards.” The novel coronavirus and COVID-19, the disease caused by the virus, have increased potential workplace hazards, thereby raising the probability that employees may speak up or refuse work assignments due to health or safety concerns. OSHA, however, prohibits employers from discharging or taking other unfavorable employment actions against an employee who has exercised a right under OSHA.
Employee “protected activity” that can grant whistleblower status under OSHA includes:
- filing a safety or health complaint with OSHA,
- raising a health and safety concern with their employer,
- participating in an OSHA inspection, or
- reporting a work-related injury or illness.
Some states, like Minnesota, have adopted broad whistleblower statutes that prohibit termination and other adverse employment actions against an employee who reports a violation of any federal or state law or regulation or refuses to perform an action based on a good faith belief that the action would constitute such a violation.1 In the context of COVID-19, OSHA is likely to be the “federal or state law or regulation” upon which the employee blows the whistle to pursue a claim under the Minnesota Whistleblower Act and similar statutes in other states.
As employers navigate the current pandemic, they should remain mindful of the potential implication of OSHA, the Minnesota Whistleblower Act, and other similar laws designed to protect employees who raise health or safety concerns in the workplace.
Employee Safety Complaints
In terms of employee complaints regarding COVID-19 concerns in the workplace, retaliation lawsuits already are being filed. A Chicago nurse filed a lawsuit alleging that she was terminated after warning her employer that the face masks provided to employees were inadequate.2 There is also the case of Chris Smalls, an Amazon employee who alleges he was fired for complaining about unsafe working conditions related to COVID-19 at a warehouse in New York. New York Attorney General Letitia James is reportedly considering bringing legal action against Amazon for terminating Mr. Smalls.3
Remote Work Disputes
Employers face additional questions regarding the stay-at-home orders issued throughout the country. Namely, which critical employees must come into work? Although specifics vary from state to state, the stay-at-home orders generally require that all employees work remotely except employees who work in identified critical infrastructure sectors and cannot perform their jobs remotely. What remains largely unclear is who gets to decide whether an employee’s job can be accomplished remotely. Even critical sector employers must tread carefully—an employee in a critical sector who believes in good faith that they can perform their job remotely and refuses to report to work in person on that basis may have a claim if an employer retaliates for that refusal.
More questions will arise as restrictions loosen. As states amend orders to downgrade remote work from a requirement to a recommendation, disputes are sure to arise between employers and employees about who needs to physically report to the workplace. Employers should consider these disputes on a case-by-case basis based on workplace-specific considerations as well as the given orders and public health guidance in place at the time.
Employers should stay conversant with the laws, regulations, and guidance that continue to evolve and develop surrounding COVID-19 to ensure that they are handling workforce issues consistent with such requirements. HKM’s attorneys are continually monitoring the ever-changing response to this unprecedented situation. If your business is confronted with an employment issue relating to COVID-19, we stand ready to assist you.