Federal Whistleblower Protections in the Age of COVID-19

By Kyle Minardi

No worker should have to sacrifice their safety for their job, particularly during a global pandemic. Sadly, Charles Collins was forced to make that exact choice. A shop foreman in New Jersey, Charles Collins noticed that his workplace had been blatantly disregarding measures to mitigate the risk of COVID-19. His managers were not enforcing social distancing protections, and they scolded employees for trying to use existing equipment as makeshift facemasks.  Understandably concerned, Charles approached his company’s Human Resources department to express his trepidation of returning to work. Sadly, he was given two dismal options: he could either return to work despite the hazard of COVID-19, or he could resign.

As the COVID-19 pandemic has raged on, and at the time of this writing, deaths from COVID-19 have neared 424,000, stories like Charles’ are not isolated. Workers who find that their workplace is not taking the sensible, necessary precautions to prevent the spread of COVID-19 may risk running into retaliation if they choose to complain. No worker should have to choose between safeguarding their (and their families’) health or being able to support themselves. Considering that many people who have lost their jobs are still having trouble collecting unemployment benefits, and that the pandemic has left many households unable to afford rent and basic necessities, the risk of losing employment is certainly significant.

Ideally, workers who decide to speak up about unsafe working conditions should be able to rely on federal and state “whistleblower statutes” to protect them against retaliation for raising such concerns. One such example is New Jersey’s “Conscientious Employee Protection Act” (CEPA), which makes it illegal for employers to retaliate against an employee who objects to or refuses to participate in activities the employee reasonably believes to be hazardous in light of public health standards. However, not all of these statutes are created equal, and some may not sufficiently protect those workers who do face retaliation for protecting their health. On the federal level, the most well-known of these laws may be the “Occupational Safety and Health Act” or “OSHA” (29 U.S.C. §§ 651-678). While not purely a whistleblower act, OSHA offers an avenue for workers to file complaints to the Occupational Safety and Health Administration if they believe they have been retaliated against for complaining about the safety/health standards of their workplace (29 U.S.C. § 660(c)(1-3). Workers should be able to raise their concerns to the federal government should their state not provide sufficient protection.

However, this seems to have not been the case during the Covid-19 pandemic. Back in October of last year, the National Employment Law Project (NELP) analyzed statistics of COVID-related OSHA retaliation complaints. The NELP analyzed 1,744 complaints and found that more than half (around fifty four percent) of these worker complaints had been dismissed without any kind of investigation into the complaints. Only about 350 were actually docketed for investigation, and a mere 35 complaints (barely two percent) were actually assessed and settled by the Occupational Health and Safety Administration. Of course, there is no way of knowing what portion of those complaints the Administration resolved in favor of the employees.

On its own, this low clearance rate might be troubling. However, what makes this statistic truly problematic is the lack of recourse which employees have once their case has been dismissed. Once the Administration screens out a complaint (meaning it is not docketed for investigation), the employee has no right to appeal whatsoever. Since OSHA does not provide a private right of action, employees who complain must effectively hope the Occupational Health and Safety Administration believes their case merits investigation, or else they will have no avenue to address their issue. As the statistics from the NELP indicate, such an outcome is sadly likely. Complicating the situation further, the number of investigators assigned to the Whistleblower Program full time actually decreased last year. These problems have existed long before the pandemic hit, but the increase in potential health hazards, coupled with the economic insecurity it has brought, has magnified the consequences of these flaws.

Fortunately, many states and municipalities have stepped up to fill the gaps left by OSHA. Philadelphia passed an ordinance last year which opened up courts to workers who received a certification of reasonable cause from the state Department of Labor. The ordinance likewise creates a presumption of retaliation when the employer takes an adverse employment action within 90 days of the employee exercising their rights under the ordinance. Colorado similarly passed state legislation last summer to provide employees more access to state courts once administrative remedies are exhausted on their whistleblower claims.

While these local and state efforts should be celebrated, they also indicate how the federal government can and should improve their whistleblower protections. First, OSHA needs to have its whistleblower investigation staff increased so that worker complaints have a somewhat better chance of seeing meaningful attention. Secondly, OSHA needs to be amended to give workers the right to pursue their cause in court should their complaint be dismissed without investigation. Lastly, until the federal government cannot reinforce its whistleblower protections, states and localities should strive to open local avenues for workers who face retaliation for protecting their health. The pandemic is still far from over, and until it is, protecting workers who are serious about safeguarding their health at work should be a vital priority.

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