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Employers Under Pressure as Covid Retaliation Court Claims Rise

April 2, 2021, 9:31 AM

Jovan Alvarez filed a wrongful termination lawsuit against Valley Presbyterian Hospital in a California state court on March 15, claiming he was fired in retaliation for bringing Covid-19 safety issues, including a lack of personal protective equipment, to his now-former supervisors.

Alvarez, who worked at the Van Nuys facility since 2012, claims wrongful termination, intentional infliction of emotional distress, and a variety of state labor code violations. He is calling for millions in damages, and he’s not alone.

Similar claims alleging firing after being vocal about Covid-19 safety issues have been brought in state courts in New Jersey, Illinois, and California in just the past two weeks, putting pressure on employers to do more to prevent retaliation filings.

“The smart employers are engaging employees in the process, they’re not just telling an employee ‘thou shalt follow this policy.’ They should include them in developing policies and find ways to include them,” said Courtney Malveaux, a workplace safety lawyer with Jackson Lewis PC in Richmond, Va.

Malveaux said employers engaging more with employees over Covid-19 safety measures helps identify hazards that may otherwise be missed and acts as an incentive for employees to help develop solutions.

Both management side attorneys and workplace safety advocates say they’ve seen a sharp rise in the number of such suits brought by workers, under a variety of state statutes ranging from common law retaliatory discharge and state whistleblower acts to fair employment and housing claims.

The increase comes even as lawmakers in more than 20 states, including Florida, Michigan, Wisconsin, Ohio, Indiana and elsewhere, have passed virus shield laws that are designed to prevent lawsuits brought by customers and workers claiming they contracted the illness.

Unlike those cases, which have been slow to develop, the coronavirus retaliation suits are mounting with no end in sight, attorneys say.

An Influx of Complaints

A search of the Bloomberg Law database shows at least 313 Covid-19 retaliation complaints filed in the past year, with roughly 34 filed in the last month, brought by nurses, retail workers, construction workers and a gamut of other occupations across the country.

Heralding their arrival was a surge of workplace coronavirus safety complaints. The federal Occupational Safety and Health Administration had received 14,325 such complaints through March 28, while state-operated OSHA agencies have gotten 49,125 of them.

President Joe Biden in January directed OSHA to decide on whether to issue a virus-specific Emergency Temporary Standard for workplace safety by March 15, but the administration let that date slip with no action being taken by the agency.

Malveaux said he began to see an influx of retaliation cases filed after state lawmakers mandated masks, as well as when OSHA in January announced in new guidance that workers who make complaints about their workplaces to the media will be protected from retaliation.

Hannah Sweiss, a safety attorney at Fisher & Phillips LLP, says an additional complication for employers are instances where a worker claims they complained about a safety issue in a lawsuit when they had not actually brought up safety before a dismissal.

“In terms of how to mitigate those claims, one thing is for employers to very closely follow all the guidance in place and make sure there are reminders and other protocols very publicly in place,” to ensure both workers and customers are aware of Covid-19 rules, Sweiss said.

Engaging with Workers

Workplace advocates said court was not their first choice for solving the safety disputes.

“The need for workers to collectively organize and have a collective bargaining agreement is one tool available, another one of them is using the courts, though we prefer if employers develop a safety plan and engage workers in that process,” Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, told Bloomberg Law on a phone call.

Goldstein-Gelb and Malveaux agreed the best thing an employer can do to prevent lawsuits based on retaliation claims is involve workers with planning and implementing safety protocols.

She also said that under the Biden administration, workers increasingly have tools to call for more safety mechanisms in the workplace, including using the court system.

“Nobody wants to lose their job, people desperately need their work. But they also need not to worry about dying for work,” Goldstein-Gelb said.

Valley Presbyterian did not respond to voicemail and email requests for comment on the Alvarez lawsuit. The hospital has not yet responded to the complaint and no attorney information for it is listed on the court’s electronic docket.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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