Will Your Employees be Whistleblowers During COVID-19?

Posted by: Gail Cecchettini Whaley, J.D. on Thursday, April 16, 2020

During this COVID-19 crisis, workers in essential businesses are reporting fears about whether they are safe at their workplace. The overriding concern for most workers is their chance of being exposed to the virus. Concerns such as a lack of personal protective equipment (PPE), failure to implement appropriate social distancing, and lack of products to sanitize hands or workspaces are common. Some employees have protested; others have refused to report to work and/or refused to perform certain tasks.

McDonald’s workers in the Bay area, for example, have been demonstrating and demanding more safety precautions. The Mercury News interviewed Maria Ruiz, who has worked for McDonald’s for 16 years and participated in a recent protest. Ruiz joined a group of drivers honking and demanding better PPE in front of a local McDonald's, saying that while the company is calling her and her co-workers essential during the pandemic, it must recognize her life is essential too. “We want gloves, we want sanitizer, we want protection between our customers and ourselves,” Ruiz said. McDonald’s officials have responded that they are sending more PPE.

The media also has reported on complaints of worker retaliation after raising workplace safety concerns. For instance, some nurses reported they were terminated after vocalizing safety concerns surrounding the lack of appropriate PPE.

Don’t Retaliate Against Employees Expressing Safety Concerns

The U.S Department of Labor’s Occupational Safety and Health Administration (OSHA) is reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the Coronavirus pandemic. Acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.

In the month of March, OSHA received 386 complaints of such retaliation. “Employees have the right to safe and healthy workplaces,” said Principal Deputy Assistant Secretary Loren Sweatt.

Both OSHA and Cal-OSHA contain protections for whistleblowers. In addition, the National Labor Relations Acts protects union and non-union employees who are working together to improve their working conditions.

Objectively Reasonable Concern

Generally, an employee can’t simply walk off the job or refuse to perform certain tasks unless the employee has an objectively reasonable safety concern that the employer has not yet addressed.

But how does an employer know if a safety concern expressed during this pandemic is reasonable or not? COVID-19 is extremely easy to transmit and can live on surfaces for a long time, according to the public health authorities. Refusing to go into an environment that risks potential exposure may be reasonable in specific circumstances.

We just don’t know how this will all play out. At a minimum, whether the employee acted based on a reasonable fear will be decided on a case-by-case basis and most labor protections are resolved to provide the greatest protection to the employee. Before disciplining any employee who refuses to work or perform certain tasks due to a safety concern, talk to an HR advisor and legal counsel.

Best Practices

  • Ensure your frontline managers understand the whistleblower protections, how to handle safety complaints, and how to take steps to avoid actual or perceived retaliation.
  • If someone has raised a COVID-19 workplace safety issue, any future personnel actions against that individual should be reviewed by legal counsel.
  • Yes, an employee can still be disciplined for legitimate business reasons unrelated to the safety complaint. However, this is an area where employers face heightened legal risk of a retaliation claim.
  • Don’t attempt to prevent employees from talking about their safety concerns. Remember that all employees have the right to work together to try and improve workplace safety conditions.
  • Take proactive steps to communicate how your business is addressing COVID-19 and workplace safety. Use CDC, OSHA and CalOSHA guidance for employers.

Every business in California is required to have an Injury Illness Prevention Program (IIPP). CEA offers IIPP Safety Program services for low-hazard and small businesses to help keep your workplace safe and meet your obligations.

Image credit: gargantiopa - stock.adobe.com

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