The Occupational Safety and Health Act (the “Act”) prohibits employers from retaliating against employees because they report unsafe and unhealthy work conditions, whether internally or to the Occupational Safety and Health Administration (OSHA). OSHA, the federal agency which administers and enforces the Act, has begun an aggressive campaign to investigate employers who have been accused of retaliating against workers who have raised COVID-19 related concerns.
As of April 11, 2021, OSHA had received 5,188 whistleblower complaints related to COVID-19.
Defining Retaliation
While termination is the most common form of retaliation, it isn’t the only one. It can also include transfers, undesirable assignments, demotions, denials of promotions, threats, reduced hours and/or pay, and other actions.
Investigatory Process and Potential Relief
An employee who believes he or she has been unlawfully retaliated against for raising safety concerns typically files a complaint with OSHA.
If the matter isn’t resolved to the agency’s satisfaction, it may ask the Office of the Solicitor at the U.S. Department of Labor (USDOL) to file a lawsuit in federal court. In any such legal action, the USDOL is the plaintiff, and seeks relief on the employee’s behalf.
The USDOL can seek a wide-range of relief, including reinstatement for the employee, lost wages, emotional distress and punitive damages.
In addition to OSHA, some states also have laws that protect employees from retaliation as a result of raising concerns regarding COVID-19 safety issues in the workplace.
Handbook Policies and Management Training
Employers should consider addressing workplace safety and health in their employee handbooks. Such policies may include information regarding the responsibility of every employee to follow all safety and health procedures applicable to their jobs, reporting potential safety and health hazards in the workplace, and, of course, immediately reporting any work-related accidents, injuries and illnesses.
In addition, training members of management to identify COVID-19 related safety issues and complaints is crucial to eradicating such issues and reducing the potential of retaliation claims.