As Businesses Return to Work, Beware of Whistleblower Claims

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Many employers have received employee concerns about potential exposure to the coronavirus in the workplace. Employees may express their general reluctance to return to the workplace or may ask why an employer is not implementing a specific safety practice. Once employees raise such concerns, employers must be aware of the potential for retaliation claims in the event of future adverse actions taken against such workers.

Employees who complain about health and safety conditions in the workplace have multiple potential legal avenues for claiming protected whistleblower status. While OSHA has not adopted a specific COVID-19 safety standard, existing anti-retaliation protections prohibit employers from taking adverse action based on a complaint over unsafe working conditions. State law whistleblower protection laws may also apply, including new COVID-19 measures in some states intended to protect health care and other workers.

If two or more employees complain about unsafe working conditions, retaliatory actions by the employer may violate the National Labor Relations Act. Most states also recognize public policy wrongful discharge claims that could be the basis for suit in the event of termination.

These legal risks do not prevent employers from taking appropriate action against employees who refuse to work based on unfounded safety concerns. Employers are also not required to implement every safety precaution requested by employees. Employers should develop and periodically update a pandemic response plan that demonstrates a careful and systematic approach toward workplace safety based on CDC, OSHA, and other health guidelines.

Discussions with employees about workplace conditions should be documented, including the reasons behind the employer’s response to any complaints. Any adverse action taken against an employee who has expressed concerns over workplace safety should be taken only after careful consideration of the business and legal risks involved.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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