New Philadelphia Ordinance Protects Employees Who Blow the Whistle On Unsafe Workplaces During COVID-19

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

On Friday, June 26, 2020, Philadelphia Mayor Jim Kenney signed the Essential Workers Protection Act, providing protections to workers who speak out about unsafe workplace conditions during the COVID-19 pandemic. The ordinance, which is touted as the first of its kind in the United States, was supported by more than two dozen labor, advocacy and nonprofit organizations in Philadelphia.

The Essential Workers Protection Act applies to all employers operating in Philadelphia (regardless of size) and requires those employers to comply with all applicable requirements of Pennsylvania and Philadelphia COVID-19 public health orders addressing safe workplace practices. The ordinance also prohibits employers from retaliating against an employee who expresses concern about workplace safety in two situations:

  • First, an employer may not retaliate against an employee who in good faith discloses information that “may evidence” unsafe working conditions that violate Pennsylvania’s or Philadelphia’s COVID-19 public health orders, if the purpose of the disclosure was to remedy the violation. This means that the employee is protected if he or she discloses information that he or she believes in good faith is a violation of a public health order, even if he or she is mistaken. Protected employee disclosures include statements about workplace safety made to employer management and reports to City or State authorities.
  • Second, an employer may not retaliate against an employee who refuses to work in conditions that the employee “reasonably believes” violate Pennsylvania’s or Philadelphia’s COVID-19 public health orders. The employee may not refuse to work, however, if the belief is unreasonable, if the employer has offered a safe alternative work assignment, or if either the Philadelphia or the Pennsylvania department of health has inspected the workplace and certified it as compliant with the public health orders.

The ordinance contains a “rebuttable presumption of retaliation” if an employer takes an adverse action against an employee within 90 days of the employee exercising his or her rights under the ordinance. Violations of this ordinance are considered a “class III” offense, and carry a maximum fine of up to $2,000 per violation. The ordinance also creates a private right of action, allowing an employee to sue his employer for a violation of the ordinance. If successful, the employee may be awarded reinstatement, back pay, compensatory damages, and attorneys’ fees and costs.

Businesses operating in Philadelphia should take the following steps to avoid liability under the new ordinance:

  • Ensure that its workplaces comply with all COVID-19 public health orders and follow the city’s guidance on workplace safety.
  • Inform managers and human resources personnel about the content of the ordinance, to ensure that they do not take any action that could be perceived as retaliation against employees protected by the ordinance.
  • Continue to address and take seriously all employee complaints about possible unsafe workplace conditions, even where the complaint is not well-founded or is based on incomplete information.

The Essential Workers Protection Act is the latest in a growing trend of Philadelphia ordinances that extend worker protections beyond those afforded by federal and Pennsylvania law. We will continue to monitor and report on local Philadelphia developments as they arise.

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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