Whistleblower Claims Litter the Horizon During the Covid-19 Crisis

In the past several weeks, we have seen some mighty changes due to the spread of the coronavirus. In recent weeks, we’ve also seen many employees (particularly health care industry employees) claiming workplace retaliation after reporting health and safety concerns in connection to Covid-19 and exposure to the rapidly spreading coronavirus.

Whistleblower Claims Due to Covid-19 Pandemic on the Horizon: 

According to a recent article in the Washington Post, OSHA (Occupational Health and Safety Administration) had already received thousands of complaints from employees just a week into April 2020. The allegations were from employees citing a lack of protections against Covid-19 in their work environments. On April 8, 2020, OSHA released a press release urging employers to remember that it is illegal to retaliate against workers that report unsafe or unhealthy conditions in the workplace during coronavirus.

What is the Occupational Health and Safety Act of 1970/  

The Occupational Health and Safety Act of 1970 (OSH Act) is one of the whistleblower protections, and anti-retaliation statutes employees can depend on for protection during the Covid-19 crisis. Section 11(c) of the Occupational Health and Safety Act of 1970 prohibits employers from retaliating against employees that exercise their rights under the statute, including raising a health or safety complaint.

Does the Law Require Employers to Provide a Safe Workplace?

In Section 5(a)(1) of the OSH Act (often referred to as the General Duty Clause), employers are required to provide a workplace free from “recognizable hazards” that are likely to cause death or severe harm.

Does OSHA Enforce Any Regulations Specific to Health Concerns Associated with Covid-19?

OSHA also enforces regulations that are specific to health concerns that have been associated with Covid-19.

29 CFR § 1910, Subpart I: Outlines OSHA’s Personal Protective Equipment standards requiring the use of gloves, eye and face protection, and respiratory protection for employees working in specific industries. 

29 CFR § 1920.134: Defines OSHA’s Respiratory Protection Standard and requires that employers implement a comprehensive respiratory program when respirators are necessary to protect workers. 

OSHA recently issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for health care workers during the COVID-19 pandemic.

OSHA’s Guidance on Preparing Workplaces for COVID-19, a recently published document related to the current crisis, contains recommendations for employers on how to provide a safe and healthy workspace during the COVID-19 crisis. 

What is the National Labor Relations Act? 

Certain sections included in the National Labor Relations Act prohibit employers from retaliating against an employee for various reasons. A March 30, 2020 decision from the National Labor Board (Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276) indicates that this section applies to healthcare workers voicing concerns about working conditions in health care facilities. 

California Whistleblower Statutes Amid Covid-19 Crisis: 

In the state of California, we have numerous statutes that offer employees the right to make a whistleblower or workplace retaliation claim. Some of the laws are specific to healthcare workers. 

California Health and Safety Code § 1278.5: Designed to encourage medical workers to report suspicions of unsafe patient care and conditions to government entities, it prohibits healthcare facilities from retaliating against an employee or worker for presenting a complaint related to the quality of care, services or facility conditions. 

California Labor Code § 6310: Prohibits employer retaliation against employees who complain about employee safety or health. 

California Labor Code § 6311: Prohibits employer retaliation against employees who refuse to violate occupational safety or health law or any duty that would create a hazard to themselves or other employees during their job.  

Tameny Claim: In California, employees may bring a common law claim for retaliation or a Tameny claim. Policies that can give rise to a Tameny claim include protections against retaliation for reporting unsafe working conditions. Employees can bring a Tameny claim in addition to claims arising under California’s whistleblower statutes.

If you need to discuss workplace retaliation or if you need to file a retaliation lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.