Protecting Your Company From COVID-19 Workplace Safety Whistleblower Claims

Employers should consider encouraging a culture that allows open discussion regarding safety concerns in the workplace and allows employees to raise such concerns with their managers.

The COVID-19 pandemic has resulted in a dramatic increase in the number of whistleblower complaints to OSHA alleging inadequate protection of employees from COVID-19 in the workplace. OSHA protects employees who complain about unsafe or unhealthy conditions in the workplace from retaliation by employers. Specifically, Section 11(c) of the Occupational Safety and Health Act prohibits employers from discharging or in any manner discriminating against any employee for making such complaints. Considering the upward trend of COVID-19 whistleblower complaints by employees, employers should consider proactively implementing measures in the workplace to minimize the potential for COVID-19 safety complaints. The sections below discuss practical steps that employers can take in that regard.

Enforcing COVID-19 Safety Rules In Compliance With Applicable Federal, State And Local Guidance

Maintaining the workplace in compliance with the applicable COVID-19 guidance may minimize the risk of and boost defenses against whistleblower complaints of unsafe or unhealthy conditions in the workplace. Employers should make good faith efforts to implement and enforce applicable safety rules in the workplace, including COVID-19 specific standards adopted by some state OSHA programs. Where available, industry-specific guidance must be followed, and where industry-specific guidance is not available, employers should strive to implement the safety standards consistently adopted by other employers in the industry. In circumstances where it is infeasible to implement the recommended safety rules, alternative means for protection that provide equal or greater protection should be explored and implemented to help demonstrate due diligence. Further, in view of the evolving COVID-19 safety guidance, employers should stay current with the applicable guidance from federal, state and local governments.

Promoting Communication Regarding Safety In The Workplace

Employers should consider encouraging a culture that allows open discussion regarding safety concerns in the workplace and allows employees to raise such concerns with their managers. Employees may be reminded about the importance of health and safety in the workplace and that they are encouraged to inform managers of any safety concerns that they notice or experience in the workplace. Managers may proactively seek input from and address employee concerns for COVID-19 safety in the workplace. Managers may be trained on the importance of being aware of the dynamics of workplace safety conditions and watching out for potential concerns among employees. Employers may consider forming safety teams (composed of both managers and employees) that may be tasked with monitoring and ensuring that COVID-19 safety rules are followed in the workplace.

Ensuring Anti-Retaliation Policy Covers Workplace Health And Safety

An effective anti-retaliation policy that covers health and safety issues in the workplace may be critical to minimizing potential for whistleblower complaints. An effective policy may include:

1. Commitment by management that includes implementation of anti-retaliation policies and procedures for handling complaints related to COVID-19 safety concerns in the workplace.

2. Systems for listening to and resolving COVID-19 safety concerns that include clear and accessible instructions on how employees can report such concerns.

3. Systems for receiving and responding to reports of retaliation in cases of COVID-19 safety complaints that include an objective, independent and transparent review process for the complaints.

4. Anti-retaliation training for managers and employees that includes employees’ rights, employer’s obligations and explanation of relevant statutes.

5. Oversight of effectiveness of the anti-retaliation policy with respect to COVID-19 cases and implementing improvements as required.

Training For Proper Handling Of Complaints

To facilitate the opportunity to address an employee’s COVID-19 safety concern internally before the employee potentially complains to OSHA, employers may consider reminding employees about the existence of channels in the workplace for lodging COVID-19 safety-related complaints. Managers should be trained to ensure that complaints are handled appropriately. Among other procedures, most complaints will require some form of investigation with assistance from relevant personnel, including compliance personnel to ensure prompt resolution of the safety concern and HR personnel to ensure any employment-related issues that may be uncovered in the investigation are handled appropriately.

Training On Prohibited Conduct

Managers should be reminded of OSHA’s protections for whistleblowers. OSHA prohibits employers from retaliating against any employee for engaging in protected activities including filing whistleblower complaints about inadequate COVID-19 health and safety in the workplace. OSHA has stated that retaliatory conduct “is one which would dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity.” Employers should ensure that managers are trained to avoid conduct that could be perceived as retaliatory.

Documenting Workplace Safety Investigations

Where an employee is properly terminated, demoted or is otherwise subjected to unfavorable action by the employer, the company should carefully document the reasons for such action. Such documents could be critical to the employer’s defense to whistleblower complaints of retaliation related to allegations of inadequate protection against COVID-19 in the workplace. In addition, employers should document all efforts made for minimizing the spread of COVID-19 in the workplace, including safety policies and enforcement, safety training and response to any safety concerns. Employers should also document the handling of any COVID-19 cases in the workplace consistent with applicable guidance for preventing spread of the disease in the workplace.

In conclusion, considering the continued upward trend of whistleblower complaints to OSHA about COVID-19 health and safety concerns in workplace, it would be prudent for employers to take steps for minimizing the potential for such complaints and for minimizing liability in cases where such complaints are lodged.

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