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Coronavirus-Related Whistleblower Claims: What Employers Need to Know

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Coronavirus-Related Whistleblower Claims:

What Employers Need to Know

May 6, 2020

Presenters

Steven J. Pearlman

  • Lloyd B. Chinn
  • Harris M. Mufson
  • Pinchos (Pinny) Goldberg

  • Partner (Chicago)
  • Partner (New York)
  • Partner (New York)
  • Associate (New York)

  • T: +1.312.962.3545
  • T:+1.212.969.3341
  • T: +1.212.969.3794
  • T: +1.212.969.3074

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Coronavirus-Related Whistleblower Claims

May 6, 2020

COVID-19 Wrongful Death Suit: Evans v. Walmart

• First known COVID-19 wrongful death suit - filed in Illinois • Decedent contracted COVID-19 while working at a Walmart store

‒ Another employee who worked at the store died of COVID-19 shortly after the decedent

• Complaint alleges:

‒ Walmart failed to implement safety measures recommended by CDC/OSHA ‒ Management did not clean and sterilize the store, provide employees with PPE, or implement social distancing

‒ Walmart did not bar employees with symptoms of COVID-19 ‒ Walmart did not warn employees that other workers had COVID-19

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Whistleblower/Retaliation Claims on the Rise

• Reports of employees alleging retaliation for reporting lack of safety measures and personal protective equipment (“PPE”)

‒ Health care workers ‒ Warehouse employees

• 1,000+ OSHA complaints regarding lack of COVID-19 protections • OSHA Press Release “reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus”

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Amazon Under Scrutiny for Firing Warehouse Employee

• Workers at 50+ Amazon warehouses have contracted COVID-19 • Amazon allegedly fired an employee who worked at its Staten Island warehouse for protesting company’s response to COVID-19

‒ Company put employee in quarantine after he was in contact with another worker who contracted COVID-19

‒ Employee then led protest calling for Amazon to close the warehouse temporarily and provide additional protections

‒ Amazon fired employee after the protest, citing his failure to quarantine

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Amazon Under Scrutiny for Firing Warehouse Employee (cont’d)

• New York Attorney General April 22 letter to Amazon:

‒ Concerned that safety measures in Amazon warehouse were inadequate and might have violated OSHA regulations

‒ Investigating whether employee was discharged “to silence his complaints and send a threatening message to other employees” – thereby potentially violating whistleblower laws.

‒ Urged Amazon to reinstate employee

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

NYAG Investigates to Ensure Shutdown of Non-Essential Businesses

• NY Attorney General’s Office has contacted thousands of employers related to shutdown of non-essential businesses

• Focus on employer compliance with Executive Order 202.8 –

‒ requires 100% reduction of in-person workforce for non-essential businesses and that essential businesses maximize telecommuting/remote work

‒ Fines – up to $2,000 for first violation, $5,000 for subsequent
• NYAG threatening injunctive relief actions in addition to fines • Also referencing OHSA and New York Labor Law § 200(1), which codifies employers’ duty “to protect the health and safety of employees”

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Topics To Cover

• Workplace Safety Issues • Federal Anti-Retaliation Provisions • State Whistleblower Laws • New Legislation on the Horizon

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Workplace Safety

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  • Coronavirus-Related Whistleblower Claims
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Relevant OSH Act Provisions and Regulations

• General Duty Clause: employers must furnish “a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

• States can adopt OSHA-approved plans • Instead of issuing virus-specific regulations, OSHA has relied upon existing rules, including:

‒ 29 C.F.R. § 1910, Subpart I: requires personal protective equipment (PPE)

• Recording and Reporting Requirements

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

OSHA Investigation Process

• OSHA will not reveal the name of the complainant • OSHA will only conduct an on-site inspection where certain criteria is met

• Off-site investigations are generally conducted via phone/fax

‒ OSHA calls the employer, describes the alleged hazards, and follows up with a fax or letter

‒ Employer must respond within five days, identifying in writing any problems found and noting corrective actions taken or planned

‒ If response is adequate, OSHA will generally not conduct on-site inspection ‒ OSHA will send letter to employee who filed the complaint, informing the employee of findings and any citations and proposed penalties

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

OSHA Investigations During COVID-19

• Interim Enforcement Response Plan for Coronavirus Disease 2019

‒ Complaints from non-healthcare and non-emergency response establishments to be processed via phone/fax

‒ COVID-related fatalities and imminent danger exposures are prioritized for inspection “with particular attention given to healthcare organizations and first responders”

‒ If an on-site inspection is warranted, compliance officers are directed to (among other things) examine whether employer has a written pandemic plan as recommended by the CDC.

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

OSHA’s COVID-19 Guidance

• OSHA has released approximately 15 directives and guides related to
COVID-19, including:

‒ “Guidance on Preparing Workplaces for COVID-19” ‒ Interim guidance for specific worker groups and their employers

‒ Safety tips for restaurant, and food and beverage businesses

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

OSHA Overwhelmed

• According to the National Employment Law Project, OSHA is operating

with the lowest number of inspectors in more than 40 years

‒ 1,469 inspectors in 1980 ‒ Currently, 862 ‒ At current staffing level, it would take the agency 165 years to inspect each workplace under its jurisdiction

• Since the outset of the pandemic, OSHA has received close to 3,000

coronavirus-related related complaints

‒ As of April 30, the agency has closed 1,831 of these complaints

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Calls for OSHA to Enact Emergency Safety Regulations

• OSH Act gives DOL authority to issue an emergency temporary standard if employees are exposed to grave dangers from new hazards

• Criticism has emerged regarding OSHA’s refusal to issue emergency standards:

‒ AFL-CIO ‒ Senators Murray, Baldwin and Heinrich ‒ David Michaels

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Secretary Scalia and OSHA Stand By Existing Regulations

• Secretary Scalia responded to the AFL-CIO’s letter, stating:

‒ “OSHA’s website contains extensive guidance on the virus for the benefit of workers and employer and, in fact, the cop is on the beat”

‒ A temporary emergency standard is unnecessary because “employers are implementing measures to protect workers” and “employer who fail to take steps are likely violating existing OSHA obligations”

‒ OSHA considers industry-specific guidance to be “more valuable” than a temporary emergency standard

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Legislation to Compel Creation of Emergency Safety Standard

• Democratic lawmakers have introduced a number of bills that would require OSHA to issue a temporary emergency standard, including:

‒ COVID-19 Health Care Worker Protection Act ‒ COVID-19 Every Worker Protection Act

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Federal Anti-Retaliation Protections

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Section 11(c) of the OSH Act

• Section 11(c): “[N]o person shall discharge or in any manner discriminate against any employee because the employee has . . . [f]iled any complaint under or related to the [OSH Act].”

• Protects employees who make reasonable, good faith complaints • Relief may include reinstatement, back pay with interest, compensatory damages, and punitive damages

• Secretary of Labor has filed at least 10 lawsuits under Section 11(c) during the
Trump era

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

Section 11(c) of the OSH Act (cont’d)

• Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093 (D.C. Cir. 2017)

‒ Held: Section 11(c) does not provide for a private cause of action ‒ Employees may submit complaint to Secretary of Labor ‒ Secretary of Labor may sue in federal court on behalf of employee

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  • Coronavirus-Related Whistleblower Claims
  • May 6, 2020

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