OSHA Raises the Standard Impacting COVID-19 Whistleblower Claims

Parker Poe Adams & Bernstein LLP
Contact

Parker Poe Adams & Bernstein LLP

Under Section 11(c) of the Occupational Safety and Health Act, employers are prohibited from taking adverse action against an employee because the employee has engaged in protected activity under the statute, such as filing a complaint or testifying in a proceeding. During the last year and a half, we have regularly seen such claims threatened or brought in when employees claim to have been terminated for complaining about insufficient employer precautions against COVID-19. In such cases, there has been some confusion regarding whether claimants must prove that their protected activity was merely a “substantial reason” for the adverse action or if “but for” that action, they would still have a job.

The U.S. Occupational Safety and Health Administration recently amended its rule interpreting the OSH Act’s anti-retaliation provision to clarify that whistleblowers must meet the higher standard of proving that “but for” their protected activity, they would not have suffered adverse action. Previously, the interpretive rule referred to the lower “substantial reason” test for causation, which has become inconsistent with recent Supreme Court cases in similar contexts, including Gross v. FBL Financial Services, Inc. (2009), Univ. of Tex. Sw. Med. Ctr. v. Nassar (2013), and Bostock v. Clayton County, Georgia (2020). As a result, employers targeted with such whistleblower claims have a new defensive tool in their arsenal.

[View source.]

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.

© Parker Poe Adams & Bernstein LLP | Attorney Advertising

Written by:

Parker Poe Adams & Bernstein LLP
Contact
more
less

Parker Poe Adams & Bernstein LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.