Photo: kokouu / E+ via Getty Images.
By Jonathan Schaefer
ost workers in the United States are protected from retaliation for raising workplace health and safety concerns and for reporting work-related injuries or illnesses. While these protections have been in place for decades, the COVID-19 pandemic has led to a record number of complaints from covered employees claiming retaliation by their employer. Since February 2020, the Occupational Safety and Health Administration (OSHA) has received nearly 6,000 whistleblower complaints related to COVID-19 (and OSHA-approved State Plans have received more than 2,000 additional complaints), representing a dramatic increase.
Because employee complaints are one of the major triggers for OSHA investigations, it is likely that a whistleblower complaint will lead to an OSHA inspection and investigation. For this, and other reasons, employers should be aware of OSHA’s anti-retaliation law and how to avoid triggering retaliation claims.
What is OSH Act Section 11(c)?
OSHA’s Whistleblower Protection Program (WPP) enforces the provisions of more than two dozen federal laws protecting a wide range of employees from retaliation in the workplace. Under the OSH Act in particular, WPP enforces Section 11(c), which prohibits employers from taking any unfavorable employment actions against employees for exercising a variety of rights guaranteed under the OSH Act, including:
• filing a safety or health complaint with OSHA;
• raising a health and safety concern with their employer;
• participating in an OSHA inspection; and
• reporting a work-related injury or illness.
Unfavorable employment actions (i.e., retaliation) can include termination, demotion, threats, intimidation, reducing pay or hours, denying overtime or promotions, denying benefits, or even changing an employee’s work schedule. Generally speaking, for a retaliation claim to be successful, an employee must be able to demonstrate that “but for” their protected activity, they would not have suffered the adverse action.
If the evidence supports an employee’s claim of retaliation and a voluntary settlement cannot be reached between the employer and employee, OSHA may litigate the case in federal court. OSHA may seek relief to make the employee whole, including reinstatement, back pay (with interest), compensation for expenses the employee may have incurred as a result of the retaliation (with interest), compensation for emotional distress, punitive damages, non-monetary relief, or any appropriate combination.
What steps can employers take to prevent retaliation claims?
Employers against whom a retaliation complaint is made face a potentially disruptive and years-long investigation and enforcement process, regardless of the merits of the complaint. Having a strong anti-retaliation policy and program in place can help avoid whistleblower complaints. If new to the concept and interested in fashioning an anti-retaliation program, OSHA’s Recommended Practices for Anti-Retaliation Programs is a good place to start. If an effective program is already in place, be sure to periodically review, monitor, and refine that program, as well as retrain employees.
A good, proactive anti-retaliation program typically includes management commitment, a compliance concern response system, an anti-retaliation response system, anti-retaliation training, and program oversight. In more basic terms, employees should know where to raise health and safety concerns without fear of retaliation, managers should know how to handle such concerns and document responses, and management should regularly monitor and support the program. Training and solid human resources practices are central to defending a retaliation complaint. If an adverse employment action is necessary — but unrelated to the employee exercising their rights guaranteed under the OSH Act — then robust documentation justifying such action is advisable. Such documentation, along with evidence of thorough training, can be vital to resolving a retaliation claim quickly.
Employers against whom a retaliation complaint is made face a potentially disruptive and years-long investigation and enforcement process, regardless of the merits of the complaint.
Recent developments with OSHA anti-retaliation
So far this year OSHA has undertaken several actions related to whistleblower protections and anti-retaliation policies. On his first day in office, President Biden announced that OSHA would launch a national emphasis program focused, in part, on COVID-19 violations that are contrary to OSHA’s anti-retaliation principles. In March 2021, OSHA issued its National Emphasis Program – Coronavirus Disease 2019 (NEP) and issued a revised NEP in July. Among other things, the revised NEP includes an added focus on ensuring that workers are protected from retaliation. OSHA inspections under the revised NEP will have an added focus on anti-retaliation policies and procedures.
In June 2021, OSHA’s COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry took effect. While this ETS is only applicable to the healthcare industry, it can serve as guidance for all employers. It is also likely that many aspects of the Healthcare ETS will find their way into the new COVID-19 ETS applicable to all industries and expected to be issued very soon. Along with numerous COVID-19-related requirements, the Healthcare ETS mandates anti-retaliation measures that go beyond the statutory bar on retaliation in Section 11(c).
Such measures prohibit employers from discharging or discriminating against employees for exercising their rights and obligations relating to the COVID-19 pandemic. This includes disclosing a positive test, disclosing COVID-19 symptoms, quarantining after testing positive for COVID-19, or notifying an employer of hazardous COVID-19 related conditions at the workplace (such as insufficient PPE or failure to implement enhanced cleaning and ventilation procedures).
Employers must also inform employees of the requirements of the Healthcare ETS and that they are protected against retaliation. The manner by which an employer provides this information is within an employer’s discretion and can be done in writing, orally, or incorporated in relevant training. Furthermore, under the Healthcare ETS, OSHA may address retaliation directly by issuing a citation, as opposed to commencing litigation as required for Section 11(c) claims. OSHA may issue such citation up to six months following the alleged retaliation.
Given the substantial increase in retaliation complaints observed during the pandemic, all employers are reminded that they remain subject to the requirements of the OSH Act, including Section 11(c)’s anti-retaliation provision. Employers would be well served to understand what actions are prohibited once an employee exercises their rights under the OSH Act, as well as what those rights are.
Employers would also be well served to take a fresh look at their anti-retaliation policies and programs – or implement such policies and programs – and ensure executives and managers understand the protections afforded by the OSH Act (as well as other whistleblower protection statutes applicable to a workplace). Responding to and defending a retaliation claim can be a costly and time-consuming endeavor with significant consequences for employers. Employers should regularly undertake employee training and should also audit their anti-retaliation policies and procedures periodically. Being proactive may provide an opportunity to resolve concerns before an employee looks to OSHA for assistance.
As with all inquiries and investigations from OSHA, engaging technical and legal support early in the process can help organize a focused response that may resolve problems before they become major issues and distractions.
Jonathan Schaefer, a partner at the law firm Robinson + Cole's Environmental, Energy + Telecommunications Group, focuses his practice on environmental compliance counseling, permitting, site remediation, occupational health and safety, energy regulatory compliance and siting, and litigation related to federal and state regulatory programs.