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Virus Whistleblowers Turning to OSHA Can Tap Extra Protections

April 13, 2020, 1:31 PM

Workers who say they’ve been fired or disciplined after raising coronavirus concerns filed more than 300 whistleblower complaints to OSHA over the past month, and also can turn to additional federal and state laws for protection, attorneys told Bloomberg Law.

Nationwide, workers say they have experienced retaliation after pointing out problems with employers’ coronavirus health precautions. And since March 1, they’ve filed 386 whistleblower complaints to the Occupational Safety and Health Administration, the agency confirmed to Bloomberg Law.

OSHA’s top administrator Loren Sweatt on April 8 emphasized that any worker “who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”

However, whistleblowers seeking reinstatement, compensation, or a purge of disciplinary actions from their personnel files can face some limitations if they file retaliation claims with OSHA under the most commonly used worker safety law—the Occupational Safety and Health Act.

Workers must submit OSH Act complaints to the agency within 30 days of an adverse job action and have no right to be represented by an attorney, said Carolyn Wheeler, a senior counsel with employee-side firm Katz, Marshall & Banks LLP in Washington.

Apart from the OSH Act, workers could pursue coronavirus-related whistleblower or wrongful discharge claims based on state laws, or bring suits under other federal employment statutes, according to attorneys.

These separate laws might give workers more time to file—up to 300 days in some cases—and allow for attorneys to represent the employee, Wheeler said.

Adam Young, a management-side attorney with Seyfarth Shaw LLP in Chicago, agreed there’s an overlap among federal laws companies could face. Also, the coronavirus is creating new issues for managers and legal counsel to gauge.

Deciding to fire a worker who didn’t come to work because of virus fears could be more difficult to defend than a refusal for other reasons, he said.

If disciplinary actions are considered, the employer should document the process and not rush to a decision. “Take a step back—slow down,” Young advised.

OSH Act Alternatives

About 36 states recognize wrongful discharge claims under common law, said plaintiffs’ attorney Jason Zuckerman of Zuckerman Law in Washington. Common law is based on court precedent, rather than statute.

“Those claims can be powerful because juries can award punitive damages,” Zuckerman said.

States also may have their own whistleblower laws such as Maryland’s Health Care Worker Whistleblower Protection Act, Zuckerman said.

Richard Renner, an attorney with Kalijarvi, Chuzi, Newman & Fitch PC in Washington, said an employee in a defense industry punished for raising Covid-19 concerns might be able to make a case under the Defense Authorization Act’s whistleblower provisions.

And financial whistleblower laws could be applicable if a company was covering up coronavirus issues that could affect its stock price, Renner said.

There also may be options to file complaints with the National Labor Relations Board or Equal Employment Opportunity Commission, Katz, Marshall & Banks’ Wheeler said.

Workers who discuss health concerns could be engaging in “concerted protected activity” covered by federal labor law, even if there isn’t a union aspect to the issue, Wheeler said.

And the Americans with Disabilities Act could be used if an employee with a health problem was forced to come to work and not offered a reasonable accommodation, Wheeler said.

Zuckerman said one of the difficult issues he’s seeing is whether disclosures to the media are covered. The federal Whistleblower Protection Act for federal employees protects disclosures to the media, but there is mixed authority about protection for private-sector employees that report to the media threats to public health and safety, he said.

OSHA Workload

In fiscal year 2019, the most recent year numbers are available for, OSHA opened 3,091 full whistleblower investigations and completed the same number. Of those cases, 2,084 were OSH Act cases. The rest fell under 22 other whistleblower laws OSHA enforces. On average, it took OSHA about 280 days to complete an investigation.

The agency received thousands more complaints in 2019 that were dismissed for being filed too late or making claims not covered by whistleblower laws.

States that have their own workplace safety and health agency, such as California, Michigan, and North Carolina, are authorized by federal OSHA to accept and investigate OSH Act retaliation complaints.

OSHA’s whistleblower protection efforts in recent years have been hampered by stagnant budgets that didn’t keep up with a growing workload. In fiscal 2016, the office had 135 authorized positions. For fiscal 2020, the agency is approved for 120 employees.

The Trump administration is seeking to add 10 positions for fiscal 2021 and boost the budget by $1.6 million to $20.2 million.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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