We’re finally beginning to see light at the end of the dark COVID-19 pandemic tunnel. Case numbers are decreasing while the vaccination rate is climbing. Given the positive developments, even the most coronavirus-cautious employers are looking forward to bringing employees back on-site in 2021. With the push, however, employers face a number of obstacles in keeping their workforces safe and healthy as well as consequences for failing to do so. One consequence can arrive in the form of an Occupational Safety and Health Act (OSHA) retaliation claim.
Navigating the New Normal
Before the pandemic, OSHA retaliation claims were traditionally a concern for employers engaged in work that was inherently hazardous in some way. With the pandemic rendering any in-person work potentially hazardous, however, businesses with little to no prior experience dealing with the OSHA or its state-based equivalents must take heed.
Already, the number of workplace safety retaliation claims has significantly increased, with the trend expected to continue as businesses begin to return to “normal.” Adding to the challenge is the fact that, despite the positive trends, the country remains in pandemic status with COVID-19 variants making the rounds. At the same time, many workers have stated they don’t intend to get the vaccine now or maybe ever.
Employers of essential workers who have been doing their jobs on-site throughout the pandemic will be at an advantage in navigating the new normal because they’ve been required to adhere closely to safety protocols all along. On the other hand, employers that have permitted most employees to telework during the crisis likely face a bigger challenge. Since few of those employees have actually been in the office, safety measures first enacted in 2020 may have become lax.
Surveys show many teleworkers remain fearful of returning to the office or simply have come to prefer remote work. The combination of increasing workplace density, lax safety measures, and fearful or resentful employees undoubtedly heightens the risk for workplace claims.
Like other federal laws that prohibit employers from retaliating against employees for engaging in protected activity, OSHA and its state law counterparts (including the Tennessee Occupational Safety and Health Act or TOSHA) bar an employer from retaliating against an employee for reporting unsafe or unhealthy working conditions. Protected activities include:
- Raising health and safety concerns directly with the employer;
- Filing a formal complaint with the Occupational Safety and Health Administration (OSHA); and/or
- Participating in an OSHA inspection or investigation.
In addition to termination, demotion, and suspension, other actions such as transferring an employee to a less favorable location, assigning more menial tasks, or preventing her from engaging in workplace activities might be deemed to be unlawful retaliation. In short, any consequence that would dissuade a reasonable person from reporting health and safety violations could be found to be an adverse action in violation of the OSH Act’s antiretaliation provisions.
Watch Out for Lawsuits
A review of recent cases and complaints illustrates the risk employers face:
Hawaii. A group of retail employees alleged their employer fired them in retaliation for voicing concerns that reopening their store as instructed would violate local stay-at-home ordinances.
California. A produce market employee filed suit under state law alleging her former employer increased her workload, became overly critical of her performance, and then fired her after she repeatedly raised concerns about coworkers and supervisors failing to abide by public health and safety guidelines.
Ohio. A licensed professional clinical counselor alleged violations of the Ohio whistleblower statute after the employer allegedly demoted her, resulting in decreased responsibilities and pay, after she complained it wasn’t providing sufficient personal protective equipment (PPE) to employees and failed to notify staff and clients when staff members tested positive for COVID-19.
The list goes on and on.
An employee who succeeds in an OSHA retaliation claim can be awarded back pay, reinstatement, and attorneys’ fees as well as emotional distress and punitive damages where applicable. Additional remedies may be available under relevant state laws, including the ability to file a lawsuit directly rather than going through the U.S. Department of Labor (DOL).
Even an ultimately unsuccessful claim can prove costly. For example, an employer that terminates or disciplines an employee for legitimate, nonretaliatory reasons shortly after she has complained about safety issues may have difficulty defending against a retaliation claim. Therefore, you should take steps on the front end to guard against such claims.
Practical Guidance
Implementing appropriate health and safety practices to limit the spread of COVID-19 is the first step to avoiding OSHA retaliation claims. Accordingly, you must:
- Pay attention to frequently changing federal, state, and local health and safety guidance;
- Distribute written safety policies and protocols that meet the guidelines; and
- Ensure they’re being followed in practice.
If your business put health and safety protocols in place during the first part of the pandemic, be sure you’re caught up with the latest guidance. Post the rules prominently and create online access to them if possible. If large segments of the workforce are returning to the office in 2021, consider setting up safety training for all employees.
Have a system in place for employees to raise health and safety concern without fear of retaliation. At the very least, you could include a written policy in your handbook and implement an anonymous submission process or other mechanism for ensuring confidentiality. Train managers and supervisors about the reporting procedures and your antiretaliation policies.
Employees who raise safety concerns shouldn’t be ignored. Valid reports should be investigated and addressed, with each step and decision in the process diligently documented. Retaliation claims arising from the process also should be seriously considered and investigated.
Finally, if it becomes necessary to discipline a complaining employee for legitimate, nonretaliatory reasons, be sure no retaliatory motive contributes to the adverse decision. Treat all similarly situated individuals consistently (whether they have complained or not), and diligently document the legitimate reasons for the discipline as well as any necessary response to the employee’s complaint. That way, you can present a strong defense should the individual challenge the discipline as retaliatory down the line.
When navigating the tricky issues, it’s always advisable to seek an experienced employment attorney’s help.
Kara E. Shea and Alexa Ortiz Hadley are attorneys in the Nashville office of Butler Snow LLP and may be reached at kara.shea@butlersnow.com and alexa.hadley@butlersnow.com.