City of Philadelphia Adopts Ordinance Protecting Coronavirus Whistleblowers

Clark Hill PLC

On June 26, 2020, after unanimous passage by the Philadelphia City Council, Mayor Jim Kenney signed an ordinance that adds a new chapter to the Philadelphia Code entitled, “Employee Protections in Connection with COVID-19 Emergency Health Order.” The new law requires employers to comply with “COVID-19 public health orders” and prohibits retaliation against employees who complain about violations of such orders.

Compliance with COVID-19 Public Health Orders

The law requires employers to “comply with all applicable requirements of COVID-19 public health orders” issued by the Commonwealth or the City and prohibits adverse employment action against employees who refuse to work in unsafe conditions that the employee reasonably believes are caused by the employer’s violation of such a governmental order. But employees may not refuse to work when given “a reasonable alternative work assignment that does not expose the employee to the unsafe condition” or upon an inspection showing that the employer is compliant with all public health orders.

Anti-Retaliation Provisions

The law also prohibits adverse employment actions against any employee who makes a “protected disclosure,” which is defined as a good faith communication that “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 … made for the purpose of remedying such violation.” This includes mistaken allegations of noncompliance that are made “reasonably and in good faith.” Additionally, the law imposes a “rebuttable presumption of retaliation” when an employer commits an adverse employment action within 90 days of the protected disclosure.

Enforcement, Remedies, and Penalties

Employees may allege violations of the new law by filing a complaint with the City’s recently created Department of Labor. Once they receive a “determination of reasonable cause to go forward,” employees may sue their employer in court. A successful complainant “may be awarded reinstatement, backpay and other compensatory damages” and the offending employer can be subject to civil penalties under the Philadelphia Code for each day that the violation occurs. Finally, the Department of Labor is empowered to adopt rules and regulations regarding the new law, which have not yet been issued.

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