Just one week after U.S. Senators introduced the COVID-19 Whistleblower Protection Bill that would prohibit employers from retaliating against workers who may blow the whistle on wrongdoing related to CARES Act relief, Philadelphia lawmakers have enacted a new City ordinance that protects whistleblowers from retaliatory employment actions after they sound the alarm at work. The Philadelphia City Council passed the ordinance, Bill No. 200328, on June 25, 2020 and Mayor Jim Kenney signed it the next day, dubbing the new legislation the “Essential Workers Protection Act” (EWPA).
Importantly, the Essential Workers Protection Act applies to all workers in Philadelphia, not just those employed by businesses considered “life-sustaining” under Pennsylvania Governor Tom Wolf’s Executive Orders.
The EWPA prohibits employers from retaliating against employees in two key respects: (1) for “making a protected disclosure” regarding a COVID-19 public health order violation; and (2) for “refusing to work in unsafe conditions if the employee reasonably believes that the employer is operating in violation of a COVID-19 public health order.” The EWPA defines “protected disclosure” as:
- a good faith communication, including a communication based on, or when carrying out, job duties,
- that discloses or demonstrates an intention to disclose information,
- that may evidence a violation of a COVID-19 public health order that may significantly threaten the health or safety of employees or the public,
- if the disclosure or intention to disclose was made for the purpose of remedying such violation.
As with most employment legislation, the devil is in the details, and “unsafe working condition” is defined within the new ordinance as “[a] condition that violates a COVID-19 public health order” that is issued by the state or local Department of Health; meaning that not all conditions that an employee may consider “unsafe” are covered or protected by the EWPA. For example, an employee may complain that all workers should be wearing gloves when touching commonly used surfaces, and although that may be a desirable practice in the COVID-19 era, it is not (currently) a requirement for businesses under any applicable public health order, and accordingly, likely on its own cannot support a viable whistleblower action under the EWPA. Nevertheless, due to fluidly changing orders issued by the government during this pandemic, all employers should regularly review and update their pandemic preparedness policies. This practice will not only protect workers and ensure legal compliance, but also reduce the risk of facing employee complaints or concerns that could amount to whistleblowing activities in the workplace.
Philadelphia employers should be especially wary of taking adverse employment actions against whistleblowing employees. The ordinance imposes a rebuttable presumption that retaliation has occurred if the employer takes any adverse action against an employee within 90 days of the employee’s exercising of any rights protected by the EWPA. Adverse employment actions in this context include, but are not limited to, reduction in pay, atypical adverse change in working hours, termination, refusal to employ, harassment, or threats pertaining to an individual’s perceived immigration status. An employer may rebut the presumption by showing that “the adverse employment action was taken for a permissible purpose” (i.e. a legitimate non-retaliatory reason).
In the event an employee alleges that the business has violated a COVID-19 public health order, an employer has the opportunity to provide a “reasonable alternative work assignment that does not expose the employee to the unsafe condition,” which may include relocating an employee away from customer-facing roles. However, business owners and managers should carefully consider the method and manner in which employees are relocated or reassigned so as not to create any adverse employment action, including atypical adverse change in working hours. Additionally, employers may find a safe harbor through a Philadelphia or Pennsylvania Department of Health inspection which shows compliance with all public health orders.
Violations of the EWPA can lead to an enforcement action from the City Department of Labor, a private cause of action from the aggrieved employee, or both. While the employee can seek reinstatement, back pay, and other compensatory damages against an employer, the City may seek fines of $2,000 for each retaliation violation and $1,000 for other violations.
By enacting the EWPA, Philadelphia joins a number of other jurisdictions to implement COVID-19 anti-retaliation protections like the City of Chicago and the State of New Jersey.
This latest COVID-19 legal development underscores the necessity of carefully reviewing all applicable government guidance and seeking counsel when faced with issues related to returning employees to work, workplace safety policies, and related compliance measures. Employers should also implement documented complaint procedures, and promptly and thoroughly investigate all employee complaints (formal or informal) related to COVID-19 concerning the workplace.