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See Something, Say Something: Reporting Unsafe Workplaces in the COVID-19 Era

| Dec 15, 2020 | Retaliation & Whistleblowing |

Workplace safety is more critical than ever in the coronavirus era. As states and cities across the country have ordered the closure and now reopening of non-essential businesses, safety measures that help prevent the spread of the virus are crucial for mitigating the risks to workers.

When employers purposely or negligently violate the rules, employee whistleblowers are often the best hope for bringing violations to the attention of government authorities. To encourage people to come forward, the Occupational Safety and Health Act (the “OSH Act” or the “Act”) protects employees who observe and report unsafe conditions in their workplaces, whether related to the coronavirus pandemic or not.

OSH Act Workplace Safety Protections

The OSH Act, passed in 1970, covers most private-sector workers and was intended “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” It is enforced by the Occupational Safety and Health Administration (“OSHA” or the “Agency), and its mission is “to ensure that employees work in a safe and healthful environment by setting and enforcing standards, and by providing training, outreach, education, and assistance.”

Employers must comply with all applicable standards established by the Act itself or issued by the Agency. They must also comply with the Act’s General Duty Clause, which requires employers to keep their workplaces free of serious recognized hazards. Failure to provide the materials or training necessary to keep workers reasonably safe may violate the Act.

The Agency is continuously updating its resources and has issued numerous temporary guidances aimed at protecting workers and preventing the spread of COVID-19 in the workplace. Although there is no standard broadly covering this specific disease, OSHA Act does have Personal Protective Equipment (“PPE”) requirements under which employers must provide, and implement programs for, gloves, eye and face coverings, and respiratory protection to protect employee safety as necessary. OSHA encourages employers and workers to follow current Centers for Disease Control guidelines to prevent infection and transmission of the virus.[1]

Protection for Workers Who Report OSHA Violations

If you believe your employer is unreasonably placing you or your co-workers at risk of the coronavirus, or if you witness other safety violations, you should file a complaint.

Possible violations may include:

  • Businesses not taking reasonable steps to ensure cleanliness or distance between employees and customers;
  • Employers not providing adequate PPE;
  • Employers cutting corners on safety measures because of less frequent inspections or relaxed regulations;
  • Non-essential businesses under lockdown orders that continue to operate and force workers to put themselves at risk; or
  • Other hazardous business practices.

Besides regulations that safeguard workers by enforcing compliance and workplace safety rules, OSHA includes a provision that protects workers who file complaints about safety and health conditions.

OSHA’s Whistleblower Protection Program also invokes anti-retaliation provisions of more than 20 other industry-specific federal statutes, including the Aviation Investment and Reform Act, Dodd-Frank Wall Street Reform and Consumer Protection Act, Patient Protection, and Affordable Care Act. The laws over which OSHA has jurisdiction include a variety of areas, including the commercial motor carrier, consumer product, environmental, food safety, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, and maritime industries.

Under OSHA’s whistleblower provision, an employer may not take an adverse employment action against a worker for engaging in an OSHA-protected activity, such as filing a complaint, causing a complaint to be filed, participating in any official investigation, and testifying about safety concerns, hazards, or other dangerous conditions in the workplace.

Workers who believe they have been subjected to retaliation for exercising their rights under OSHA regulated statutes should initiate a complaint as soon as possible to meet the legal time limits, as some are as short as 30 days from the date they learned of or experienced retaliation. An employee can file a complaint in person by visiting or calling their local OSHA office; sending a written complaint via fax, mail, or email to the nearest OSHA office; or filing a complaint online at osha.gov.

While you may file a complaint anonymously, OSHA will treat it as a complaint from a non-employee and assign it a lower priority. You may also give OSHA your name but ask that it not be disclosed to your employer. Although OSHA will maintain the complainant’s anonymity, your employer may discern your identity from the facts and circumstances.

Although legal counsel is not required, an experienced whistleblower protection attorney can help you organize and properly file your complaint and pursue all relief to which you may be entitled, including back pay, other compensatory damages, and reinstatement where appropriate.

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