America Needs to Protect Workers Who Report COVID Safety Violations

Charles Collins worked for a manufacturing company as the shop foreman in Rockaway New Jersey when the COVID-19 pandemic came to New Jersey. Collins pulled out a protective face mask from the company’s supplies as protection from the virus and a dozen workers followed his example. A few of the men already had flu-like symptoms and it was impossible to maintain a safe distance from another on the shop floor.

Collins soon received a text message from management stating that masks were for wood chip, metal particles, and other occupational safety hazards only. When Collins returned from a planned vacation, the company told him to quarantine at home for two weeks because he had been traveling. His employer paid him for only the first week of his company-ordered quarantine. Collins was told that his second work of quarantine came from his accrued sick and vacation time.

However, Collins didn’t want to return to work after the quarantine. Collins learned from co-workers that the company was ignoring recommended safety measures such as wearing masks and maintaining social distancing. Collins was terminated when he told human resources that he feared becoming infected if he returned to work without the necessary safety precautions.

Collins filed a complaint under the state’s whistleblower protection law. The state law prohibits employers from firing, demoting or otherwise retaliating against workers who refuse to take part in activities they believe are incompatible with public health and safety mandates. His former employer has denied the allegations.

Retaliation During a Global Pandemic

The federal Families First Coronavirus Response Act (FFCRA) offers employees two weeks paid leave if they are quarantined and another two weeks paid sick leave at two-thirds pay for a child if their school is closed. FFCRA also offers expanded family and medical leave.

Worker whistleblower protections may differ between the Occupational Safety and Health Administration (OSHA) and whistleblower protections for other types of wrongdoing. However, an OSHA dismissal of a complaint may bar workers from appealing the decision and an OSHA complaint may bar the filing of another complaint in state court. OSHA has declined to adopt mandatory COVID safety standards on the belief that a “general duty” to maintain a workplace free hazard space is sufficient to prevent Covid-19 related exposure.

Some cities and states have increased protections for whistleblowers. Virginia was the first state in the country to provide workplace Covid-19 related safety standards. Virginia’s new laws include protections for workers from retaliation for reporting safety concerns or refusing to work in unsafe locations. Colorado has passed similar laws that prohibit employers from retaliating against workers for Covid-19 related complaints or for taking time off to minimize exposure and transmission.

Proving retaliation will remain a challenge. Retaliation claims, like discrimination claims, require the elimination of other potential causes in order for an employee or former employee to prevail. For instance, an employer might argue that an employee was not terminated for Covid related reasons but because the employee was tardy, absent, or other non-Covid related reasons. The employee can get around this rationale by providing that this alternative explanation is only a pretext for retaliation.

However, terminations for absence and Covid may be interrelated. That is, employees who are absent from their job may be absent for Covid related reasons – an employee may be absent because they are in quarantine or in the hospital. This relationship would be similar to pregnancy related terminations: terminating a pregnant employee for being absent on the job may still be considered pregnancy discrimination if the pregnancy is the reason for the absence.

Overall, existing retaliation and discrimination laws provide a solid foundation for Covid related employment claims. However, the lack of guidance from OSHA and the federal government will lead to a patchwork of state by state protections for employees. States that take Covid more seriously like Virginia or Colorado will offer greater legal protection to employees while other states may not.

Do I Need an Attorney for Help with My Retaliation Claim?

It may be difficult to prove wrongful termination claims when you are terminated for retaliatory reasons. If you believe that your employer terminated your employment in retaliation for making a Covid related complaint, then you should contact a local employment lawyer as soon as possible.