OSHA Whistleblower Charges Surge During COVID-19: What Employers Can (and Should) Do to Prepare and Respond

Whistleblower charges alleging workplace safety retaliation have surged dramatically during COVID-19. Approximately 30 percent more charges have been filed with federal OSHA over the same period last year, according to a recent audit from the U.S. Department of Labor Office of Inspector General. The charge rate in the states and territories with state OSHA-certified plans—about half the country—is believed to have similarly increased.

The volume of safety-related retaliation charges is likely to continue (and potentially increase) as employers and governments continue to grapple with stay-at-home and return-to-work orders and protocols, the approaching flu season, and as vaccine candidates draw closer to approval and distribution. With that in mind, there are concrete steps that employers can take to avoid adverse whistleblower complaint findings.

Types of Whistleblower/Retaliation Claims Under the Federal OSHA¹

There are two varieties of whistleblower claims under the Occupational Safety and Health (OSH) Act. The first resembles equal employment opportunity-related retaliation charges that many employers may be familiar with and requires the following elements:

1. The claimant participated in activity protected by the OSH Act;
2. The employer subjected the claimant to an adverse employment action; and
3. A causal connection exists between the protected activity and the adverse action.

Protected activities include complaining about workplace safety conditions to an employer, filing a safety complaint with OSHA, or cooperating in an OSHA investigation.

Adverse actions include any action that might dissuade a reasonable worker from engaging in OSH Act-protected activity. They include termination, demotion, and suspension. Some courts have found that they include other, less obvious actions, such as an unfavorable job reference, a lateral transfer, or a change in work schedule.

The second kind of whistleblower claim is more uniquely related to workplace safety. It can occur when an employee refuses to work because he or she reasonably believes that engaging in the required work presents "a real danger of death or serious injury." Employees alleging this kind of whistleblower complaint face a higher burden and must prove that he or she:

1. Had a reasonable apprehension of death or serious injury;
2. Refused to work in good faith;
3. Had no reasonable alternative besides refusing to work (i.e., cannot do the task in a safe way, such as through remote work);
4. Had insufficient time to eliminate the condition through regular statutory enforcement channels (i.e., contacting OSHA); and
5. Where possible, sought from their employer, and was unable to obtain, a correction of the dangerous condition.

Damages and Reinstatement Under OSHA Retaliation Claims

A successful whistleblower retaliation claim can result in back wages, reinstatement of the employee, reimbursement of the employee for attorney and expert witness fees, and other remedies required by the court or agency.

If OSHA determines that the complaint has merit and a voluntary settlement cannot be reached, the Office of the Solicitor of Labor may choose to litigate the case on the whistleblower's behalf in federal district court. If OSHA determines the complaint lacks merit, OSHA will dismiss the complaint. The employee may seek appeal of the dismissal within OSHA by filing a request for review within 15 days of receiving the adverse decision.

If OSHA determines that the dismissal was improper, it can reopen the case. If OSHA determines that the dismissal was proper, that decision represents a final determination of the Secretary of Labor. The employee is not entitled to bring the employee’'s own civil lawsuit under the federal scheme (although private causes of action where the agency declines further action are possible in some state-plan jurisdictions).²

Suggested Best Practices

Many employers who have little or no experience with responding to employees' workplace safety concerns or dealing with OSHA inspections are at significant risk that such issues will arise because of heightened employee anxiety regarding COVID-19. The pandemic has rendered all workplaces with onsite employees (or customers) potentially hazardous. Accordingly, employers can and should take steps to reduce the likelihood of exposure to successful whistleblower claims:

• Educate HR departments, safety departments, managers, and supervisors that safety complaints are protected activity. For previously low-hazard work environments, this may not be understood or obvious to all team members.
• Ensure that your workplace COVID-19 policies and protocols meet applicable CDC, state, and local orders and guidelines. These orders and guidelines frequently change, but typically state and county public health departments are a good source of information. Lacking such policies and procedures may lend legitimacy to a COVID-related whistleblower charge.
• Ensure that your COVID-19 policies and protocols are being followed in practice. Having written programs that are not executed in practice will not meet current COVID-19 obligations and may lend legitimacy to a whistleblower charge.
• If an employee refuses to work due to safety concerns, listen to the basis for the concern and consider whether it is reasonable in light of current public health authority guidelines (for example, regardless of the employer's view on mask wearing, if current guidelines direct or encourage mask wearing at work and co-workers are working in close proximity without masks, the complaining worker's concern may be sufficient to support a claim). Similarly, if the job can be done by another means (e.g., teleworking), consider that option.
• If any safety complaints appear valid, address them and document the reasons for the decisions made.
• If an employee refuses to work on the basis of safety, carefully document communications with the employee. This will help defend against the employee’'s claim that he or she lacked reasonable alternatives besides refusing to work, had insufficient time to complain to OSHA, or had sought, but was unable to obtain, the employer's help in correcting the allegedly dangerous condition.
• Any adverse employment actions should be well-documented and justified by legitimate business reasons. Workplace policies should be applied and enforced as written, and in an even-handed manner.
• If federal OSHA or a state-plan compliance enforcement officer inspects the workplace, the employer should not try to determine who filed the complaint. If the employer knows or believes it knows who filed the complaint, the employer should take extra caution to avoid the appearance of retaliation against that individual.

FOOTNOTES

1 The same considerations that apply to federal OSHA whistleblower charges generally apply to state OSHA-certified plan whistleblower charges.
2 Employers should note that civil lawsuits are nevertheless occurring against employers on the basis of COVID-19 workplace safety concerns, including lawsuits advancing "public nuisance" claims rooted in employers' allegedly deficient COVID-19 safety protocols.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.