Are you about to be hit with a wave of employee complaints or concerns about protections from workplace COVID-19 exposures?
The Biden administration’s Occupational Safety and Health Administration (OSHA) already has issued updated COVID-19 guidelines that include recommendations for establishing antiretaliation procedures. President Joe Biden also has ordered OSHA to consider establishing an emergency temporary standard (ETS) for COVID-19. Three states—California, Michigan, and Oregon—already have their own temporary rules, and Virginia now has a permanent COVID-19 standard.
COVID-19 is a respiratory illness caused by the SARS-CoV-2 virus. Worker safety and health complaints have spiked since the COVID-19 pandemic began in March 2020. State agencies with their own ETSs for COVID-19 exposure have initiated workplace inspections in response to employee complaints. Could a federal standard have a similar effect?
The updated COVID-19 guidance issued on January 29 recommends that employers implement protections from retaliation that include setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.
Whistleblower protections under the Occupational Safety and Health Act of 1970 (OSH Act) prohibit discharging or otherwise discriminating against an employee for engaging in a variety of occupational safety and health activities. During the pandemic, that means you may not discriminate against an employee for raising a reasonable concern about infection control related to COVID-19. You also may not retaliate against an employee for reporting concerns to a government agency or voicing concerns in public through print, online, social, or other media. You also cannot take adverse action against an employee for voluntarily providing and wearing his or her own personal protective equipment (PPE), such as a respirator, a face shield, gloves, or a surgical mask.
In its new guidelines, OSHA recommended assigning a manager, a supervisor, or another coordinator to be responsible for all COVID-19 issues. Employees should be informed of whom to contact with questions or concerns about workplace safety and health. You also may want to consider using a hotline or another method for workers to voice concerns anonymously.
A federal ETS may mirror some of the requirements found in the California, Michigan, Oregon, and Virginia standards, such as written preparedness and response plans, employer payment for COVID-19 testing and face coverings, engineering controls like plexiglass barriers, and whistleblower protections. The new OSHA guidance recommends that employers provide COVID-19 vaccination at no cost to employees.
Even under the previous administration, OSHA received thousands of worker complaints about workplace safety and health concerns related to COVID-19 exposures and conducted hundreds of investigations. You need to be mindful of both your safety and health programs and your policies and procedures for handling workplace safety and health complaints.
OSHA Enforcement During the Pandemic
Violations cited by federal OSHA since the pandemic began have included a lack of a written respiratory protection program and failure to comply with respiratory protection requirements for medical evaluations, fit testing, and training.
Other violations have included failures to record and report workplace injuries, illnesses, and fatalities. COVID-19 is a recordable illness if employees became infected as part of their work-related duties. It is recordable if it is a confirmed case of COVID-19, if it is work-related, and if it results in medical treatment or days away from work.
The agency also has issued citations for violations of the General Duty Clause to provide work and a workplace free of recognized hazards.
You may want to look at the state COVID-19 regulations in California, Michigan, Oregon, and Virginia to understand what requirements a federal ETS might contain. Most contain antidiscrimination or antiretaliation provisions. These include rules barring any retaliation—a demotion, layoff, or termination—against employees ordered by state or local public health departments to isolate or quarantine for confirmed or suspected cases of COVID-19.
If you have a public-facing business, controlling COVID-19 hazards may be difficult. You may need to place notices clearly informing customers of COVID-19 precautions like maintaining physical distance, wearing face coverings, and not entering your establishment if they are sick.
The Centers for Disease Control and Prevention (CDC) continually updates its “Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19).” All workers should wear masks or face coverings under the current CDC guidelines, unless respirators or infection-control face masks (surgical masks) are required. Your state or local public health department may have instructions or guidelines to help you implement hazard controls during the ongoing pandemic.
If you’re an employer in health care, your employees may have concerns about the availability of respirators and other PPE, including gloves, goggles or face shields, and gowns. Like other employers, you may be struggling with the ongoing shortage of N95 filtering facepiece respirators.
The National Personal Protective Technology Laboratory (NPPTL) at the National Institute for Occupational Safety and Health (NIOSH) has continued to assess the effectiveness of stockpiled respirators and provide guidelines for decontaminating and reusing respirators.
Problems with OSHA Whistleblower Investigations
The Department of Labor’s (DOL) Office of the Inspector General (OIG) last fall conducted an audit of OSHA’s handling of COVID-19 whistleblower complaints. During the first 4 months of the pandemic, the agency’s whistleblower program received 30% more complaints than during the same period in 2019. OSHA received over 1,600 COVID-19 whistleblower complaints, with its regional offices in Chicago, Atlanta, and Philadelphia receiving the most. The total number of COVID-19 complaints was approaching 5,000 near the end of January.
The OIG conducted interviews, reviewed internal communications, and analyzed whistleblower complaint data to assess OSHA’s handling of COVID-19 whistleblower complaints. OSHA already was challenged to complete investigations in a timely manner before the pandemic, the OIG found, and the pandemic only increased the number of complaints filed.
The uptick came at a time when the Whistleblower Protection Program (WPP) already was understaffed. The OIG recommended that OSHA fill staff vacancies in the WPP, continue a pilot triage program in the agency regional offices, and develop a caseload management plan to evenly distribute complaints among investigators.
OSHA began a triage pilot before the pandemic designed to expedite the complaint screening process that included reassigning older complaints from regions with large backlogs to regions with smaller backlogs. OSHA had not used a similar approach to evenly distribute COVID-19 whistleblower complaints, and the OIG suggested the agency do so.
Employee rights extend beyond the right to speak up about a workplace hazard or request an OSHA inspection without fear of retaliation. Protections under the OSH Act also include the right to have personal protective or safety equipment made available, receive training, review records of workplace illnesses and injuries, and see the results of workplace hazard assessments.
You need to carefully handle an employee complaint about the absence of or inadequate safety and health measures against SARS-CoV-2 exposure. OSHA might initiate a whistleblower protection investigation for retaliatory actions such as:
- Employee intimidation, reprimands, or threats and even subtler actions like falsely accusing an employee of poor performance or isolating, mocking, or ostracizing an employee;
- Employee demotion, firing, layoff, or reduction of benefits, hours, or pay;
- Blacklisting an employee or failing to rehire an employee who reported safety and health concerns; and
- Reassigning an employee to less desirable duties or excluding an employee from training opportunities.
You need to be transparent about how you handle employee safety and health complaints and take all reports of retaliation seriously. You should establish a complaint review process independent of direct supervisors. Your complaint review process should utilize conflict-of-interest protections, such as involving senior managers and others to both weigh the reported concern and recognize the need to prevent retaliation against the reporting employee.
You also need to inform employees of their right to file a retaliation complaint with OSHA or the appropriate state agency if your facility is in a state with its own occupational safety and health program. Employees have 30 days to file a whistleblower complaint following any alleged retaliation. A bill introduced in Congress during the initial surge in COVID-19 cases would have extended the deadline to 180 days.
OSHA Response to Whistleblower Complaints
OSHA or the appropriate state agency first will determine whether the whistleblower complaint has been filed on time. The agency may attempt to broker a settlement between you and the employee whistleblower. At any point in an investigation, the OSHA inspector may explore negotiating a settlement to conclude a whistleblower complaint case.
The OSHA inspector’s pre-investigation research will include gathering copies of complaints filed with OSHA or another agency, copies of any enforcement actions like recent workplace inspections, and information on any previous whistleblower complaints.
OSHA or the state agency likely will send investigators to conduct on-site interviews and collect documentary evidence following a whistleblower complaint. Corporate counsel or a company representative may be present for interviews with management staff, but interviews with nonmanagement personnel are conducted in private.
An investigator may collect documentation that includes:
- Collective bargaining agreements, earnings and benefits statements, and records of employee grievances;
- Employee manuals and Human Resources policy handbooks, as well as position descriptions; and
- Employee benefit and earnings statements, performance appraisals, personnel actions, reprimands, termination notices, or warnings.
If, after a whistleblower complaint investigation, OSHA determines retaliation in violation of the OSH Act has occurred, the secretary of labor may sue you in federal district court to obtain relief. DOL attorneys may seek relief that includes putting an employee back to work if the employee has been wrongfully terminated, paying lost wages and benefits, or providing other relief to compensate an employee who has suffered retaliation.
The liabilities in a whistleblower retaliation suit can be substantial. One Pennsylvania manufacturer had to pay $1,047,399 in lost wages and punitive damages to two former employees fired in retaliation for cooperating with federal safety investigators. The company had fired employees who assisted OSHA inspectors and provided testimony that led to the company’s citation for safety violations. The awards included back pay and interest.
OSHA’s WPP enforces the whistleblower provisions of about 20 federal statutes in addition to the OSH Act. The agency also investigates retaliation against employees for reporting violations of federal transportation laws on airlines, cargo containers, commercial motor carriers, maritime safety, motor vehicle safety, pipelines, public transit, and railroads. It also enforces the whistleblower protection provisions of consumer product, environmental, financial reform, food safety, health insurance reform, nuclear energy, securities, and tax laws.