There finally seems to be a light at the end of the dark, COVID-19 pandemic tunnel. As spring transitions to summer, COVID-19 case numbers are decreasing while the vaccination rate is increasing. Given these positive developments, even the most COVID-cautious employers are looking forward to bringing employees back on site in 2021. With this push, however, comes a number of obstacles that employers face in keeping their workforces safe and healthy, as well as consequences for failure to do so. One such consequence comes in the form of Occupational Safety and Health Administration (“OSHA”) retaliation claims.
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. However, with the pandemic rendering any in-person work potentially hazardous, employers with little to no prior experience dealing with OSHA or state-based equivalents must take heed. Already, the number of workplace safety retaliation claims has significantly increased during the pandemic, with that trend expected to continue as businesses aim to return to “normal.” Adding to the challenge are the facts that, despite the positive trends, the country remains in pandemic status, with COVID variants making the rounds, while many workers have stated they do not intend to get COVID-19 vaccine, now, or maybe, ever.
Employers of essential workers who have been working on-site throughout the pandemic will be at an advantage in navigating the “new normal”, as they have been required to closely adhere to safety protocols all along. On the other hand, employers who have permitted most of their employees to telework during the pandemic likely face a bigger challenge. Safety measures first enacted in 2020 may have become lax, as few employees have actually been in the office. Surveys show that many teleworkers remain fearful of returning to the office, or, may simply have come to prefer telework. The combination of increasing workplace density, lax safety measures, and fearful or resentful employees, undoubtedly heightens the risk of workplace claims.
Like other federal laws that prohibit an employer from retaliating against an employee for engaging in a protected activity, the Occupational Safety and Health Act, along with its state law counterparts[1], prohibits an employer from retaliating against an employee because the employee has reported unsafe or unhealthy work conditions. A protected activity in this context includes raising health and safety concerns directly with the employer, filing a formal complaint with 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 an employee in 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 deemed to be an adverse action in violation of OSHA’s anti-retaliation provisions.
Watch out for lawsuits
A review of recent cases and complaints is illustrative of the risk employers face. A group of retail employees in Hawaii alleged their employer fired them in retaliation for voicing concerns that reopening their retail store as instructed would violate local stay-at-home ordinances. A produce market employee in California filed suit against her former employer under state law, alleging that her employer increased her workload, became overly critical of her performance, and then fired her after she repeatedly raised concerns about fellow employees and supervisors failing to abide by public health and safety guidelines. A licensed professional clinical counselor in Ohio alleged violations of the Ohio Whistleblower Statute after her employer allegedly demoted her, resulting in a decrease in her responsibilities and pay, after she complained that her employer was not providing sufficient 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 attorney’s 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 Department of Labor. Even an ultimately unsuccessful claim can prove costly. For example, an employer who terminates or disciplines an employee for legitimate, non-retaliatory reasons, but who does so shortly after the employee has complained about safety issues, may have difficulty defending against the employee’s allegations of retaliation. Therefore, employers 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 key step to avoiding OSHA retaliation claims. This requires paying attention to frequently-changing CDC, state, and local health and safety guidelines, distributing written safety policies and protocols that meet those guidelines, and ensuring those policies and protocols are being followed in practice. Employers who put their protocols in place during the first part of the pandemic will want to make sure they have revised their policies based on the latest guidance. Employers must also make sure employees have access to their safety protocols, and so should post their rules prominently as well as creating online access if possible; employers with large segments of the workforce returning to the office in 2021 should consider safety training for all employees.
Employers should also have a system in place for employees to raise health and safety concern without fear of retaliation. This would include, at the very least, a written policy in your handbook, or could include implementing an anonymous submission process or other mechanism for ensuring confidentiality. Management and supervisors should be trained in these reporting procedures and in anti-retaliation policies. Employees who raise safety concerns should not be ignored. Valid concerns should be investigated and addressed, with each step and decision in the process diligently documented. Claims of retaliation arising from this process should also be seriously considered and investigated.
Finally, should discipline of a complaining employee become necessary for legitimate, non-retaliatory reasons, care must be taken to ensure that no retaliatory motive contributes to the adverse decision. Consistent treatment of all similarly situated individuals (whether they have complained or not), diligent documentation of legitimate reasons for discipline, as well as any necessary response to the employee’s complaint, is key to presenting a strong defense should the employee challenge the discipline as retaliatory down the line.
When navigating these tricky issues, it is always advisable to seek the help of an experienced employment attorney.
Kara E. Shea and Alexa Ortiz Hadley are in the Nashville office of Butler Snow, and may be reached at kara.shea@butlersnowcom and alexa.hadley@butlersnow.com.
[1] Tennessee’s safety statute (“TOSHA”) may be found at T.C.A. 50-3-101 et seq.; additionally, the Tennessee Public Protection Act provides a cause of action for employees who are subject to retaliation for being “whistleblowers.” Code Ann. § 50-1-304.
