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 [email protected] [email protected] [email protected] [email protected]

2 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

3 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”

4 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

5 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

6 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”

7 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

8 Coronavirus-Related Whistleblower Claims May 6, 2020 Workplace Safety

9 Coronavirus-Related Whistleblower Claims May 6, 2020 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

10 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

11 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.

12 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

13 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

14 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

15 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

16 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

17 Coronavirus-Related Whistleblower Claims May 6, 2020 Federal Anti-Retaliation Protections

18 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

19 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

20 Coronavirus-Related Whistleblower Claims May 6, 2020 Section 11(c) of the OSH Act (cont’d)

• Acosta v. Champagne Demolition, LLC, (N.D.N.Y. 2017) ‒ Held: There is a right to a jury trial on a Section 11(c) claim

• Perez v. Lloyd Indus., Inc. (E.D. Pa. 2019) ‒ Whistleblowers awarded over $900,000 ($400,000 in back/front pay and $500,000 in punitive damages) after March 2019 jury trial

21 Coronavirus-Related Whistleblower Claims May 6, 2020 National Labor Relations Act (“NRLA”)

• Section 8(a)(1) and 8(a)(3): Employers prohibited from retaliating against an employee for participating in “concerted activity” • Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA- 212276 (March 30, 2020) ‒ Hospital employee terminated for “discussing staffing shortages” and “expressing support for . . . [local] nurses union” in violation of media policy ‒ Policy restricted right to publicly complaint about workplace issues of common concern ‒ Termination violated Section 8(a)(1) and 8(a)(3)

22 Coronavirus-Related Whistleblower Claims May 6, 2020 Families First Coronavirus Response Act (“FFCRA”) Retaliation Claims

• Employers prohibited from firing, disciplining, or otherwise discriminating against employees because employees take leave under the FFCRA, file a proceeding related to the FFCRA, or testify (or intend to testify) in any such proceeding. ‒ Relief available under the FFCRA includes lost wages, liquidated damages, reinstatement, and attorneys’ fees

23 Coronavirus-Related Whistleblower Claims May 6, 2020 Families First Coronavirus Response Act (“FFCRA”) Retaliation Claims – Cases Filed

• Jones v. Eastern Airlines, LLC: plaintiff filed complaint in federal court in PA alleging that she was fired in violation of the FCCRA’s anti-retaliation provision after requesting leave under the FFCRA to care for her son while his school was closed • Robtoy v. The Kroger Co.: plaintiff filed a complaint in federal court in Indiana alleging that she was terminated in violation of the FCCRA for taking leave after experiencing COVID-19-like symptoms and being ordered by a doctor to self-isolate for two weeks

24 Coronavirus-Related Whistleblower Claims May 6, 2020 State Whistleblower Laws

25 Coronavirus-Related Whistleblower Claims May 6, 2020 New York Whistleblower Statute

Labor Law § 740: • Prohibits retaliation for reporting a violation of the law that “creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud” ‒ Employees must show employer engaged in “actual violation” ‒ Harm must affect “public-at-large” ‒ One year statute of limitations ‒ Applies to employers of any size

26 Coronavirus-Related Whistleblower Claims May 6, 2020 New York Health Care Whistleblower Statute

Labor Law § 741 ‒ protects health care employees for disclosing or objecting to “an activity, policy or practice . . . that the employee, in good faith, reasonably believes constitutes improper quality of patient care.” ‒ Applies to employers who provide health care services ‒ Two year statute of limitations ‒ At least two cases publicly filed related to COVID-19

27 Coronavirus-Related Whistleblower Claims May 6, 2020 Proposed NYC Legislation

NYC Essential Workers’ Bill of Rights • Proposed legislation would require employers to have just cause to discharge essential employees of essential employers as defined in Executive Order • Would also require progressive discipline • And would require wage premiums to non-salaried essential employees of employers with 100 or more employees

28 Coronavirus-Related Whistleblower Claims May 6, 2020 California Whistleblower Statutes

• California Health and Safety Code § 1278.5: protects employees of health care facilities who complain about “quality of care, services, or conditions at the facility.” • California Labor Code ‒ § 6310: prohibits employers from retaliating against employees for complaining about employee safety or health ‒ § 6311: protects employees who refuse to perform work that would result in a violation of any occupational safety or health law and “create a real and apparent hazard to the employee or his or her fellow employees.”

29 Coronavirus-Related Whistleblower Claims May 6, 2020 Illinois Whistleblower Protection

• Illinois’ Hospital Report Card Act: protects hospital employees who report “any activity, policy or practice of a hospital that . . . the employee reasonably believes poses a risk to health, safety, or welfare of a patient or the public.”

30 Coronavirus-Related Whistleblower Claims May 6, 2020 Chicago’s Proposed Anti-Retaliation Ordinance

• Chicago’s COVID-19 Anti-Retaliation Ordinance: proposed ordinance that, if enacted, would prohibit employers in Chicago from retaliating against an employee for obeying a stay-at-home order enacted as a consequence of COVID-19 ‒ Affirmative defense: an employer can assert that it relied upon a reasonable interpretation of the health order at issue and, upon learning of the violation, cured the violation within 30 days ‒ Penalties/damages: employers may be fined up to $1,000 per offense per day and, in a civil action, employees may seek, among other things, damages equal to three times the amount of wages the employee would have been owed

31 Coronavirus-Related Whistleblower Claims May 6, 2020 Other Emergency Laws / Executive Orders

• Michigan (EO 2020-36): protects employees who stay at home when they are at particular risk of infecting others with COVID-19 • New Jersey (A3848/S2301): protects employees who take time off from work during the covid-19 pandemic based on the recommendation of medical professional because the employee may have an infectious disease • Washington (Proclamation 20-46): protects employees who exercise their rights under Washington’s stay-at-home order

32 Coronavirus-Related Whistleblower Claims May 6, 2020 Other Health Care-Specific Whistleblower Protections

• Michigan’s Health Facility Whistleblower Protection Act: protects health care facility employees who make a good-faith complaint that their employer has violated a statute or rule. • Texas Health and Safety Code § 161.134: protects hospital and treatment facility employees who report a violation of law or rules, including prohibitions against unethical or unprofessional conduct. • Washington Code § 43.70.075: protects health care employees who make a good-faith complaint about improper quality of care provided by the facility. • Wisconsin’s Health Care Worker Protection statute: protects health care employees who report situations in which the quality of health care services provided by a health care facility violate any established clinical or ethical standard.

33 Coronavirus-Related Whistleblower Claims May 6, 2020 Other State Whistleblower Statutes

• New Jersey’s Conscientious Employee Protection Act (“CEPA”): protects employees who object to, or refuse to participate in, any activity, policy or practice which the employee reasonably believes is in violation of a law, rule or regulation issued under the law, or if the employee is a licensed or certified health care professional, constitutes improper quality of patient care. • Virginia Fraud and Abuse Whistle Blower Protection Act (VA Code § 2.2-3011): protects employees who disclose “information about suspected wrongdoing or abuse . . . in good faith and upon a reasonable belief that the information is accurate.” ‒ HB 798: effective July 1, 2020, courts may award aggrieved whistleblowers injunctive relief, reinstatement, and uncapped compensation for lost wages

34 Coronavirus-Related Whistleblower Claims May 6, 2020 Common Law Retaliatory Discharge

• Over half of US states recognize common law cause of action for retaliatory discharge based on violation of public policy, including: ‒ California (Tameny claim): conduct must implicate a fundamental policy embodied in constitutional or statutory provisions ‒ Recognized where discharge violated California Health and Safety Code § 1278.5 ‒ Illinois: recognized where employee discharged for refusing to engage in activity that violated safety-related regulations ‒ New Jersey: discharge must be contrary to a clear mandate of public policy ‒ Washington, DC: recognized where a was nurse discharged because she advocated for patients’ rights

35 Coronavirus-Related Whistleblower Claims May 6, 2020 New Legislation On The Horizon

36 Coronavirus-Related Whistleblower Claims May 6, 2020 Proposed & Recently Enacted COVID-19 Employee Protections

• Essential Workers’ Bill of Rights: legislation introduced in the U.S. Congress that would prohibit retaliation against workers who express concerns about unsafe work conditions or exposure to COVID-19 in the workplace • Michigan Executive Order 2020-36: effective April 3, 2020, employers are prohibited from retaliating against an employee for staying home when the employee is “at a particular risk” of infecting others with COVID-19 • New Jersey A3848: effective March 20, 2020, employers are prohibited from retaliating against an employee for taking, or requesting, time off on the advice of a licensed health care professional because the employee has an infectious disease that could effect others in the workplace • Workers’ Compensation presumption: many states, including Alaska, Kentucky, Michigan, Missouri, New Hampshire, New Mexico, North Dakota, Utah and Wisconsin, have amended their workers’ compensation laws to create a presumption that certain employees, such as first responders, who contract COVID-19 are eligible for workers’ compensation

37 Coronavirus-Related Whistleblower Claims May 6, 2020 Proposed & Recently Enacted COVID-19 Employer Protections

• Business groups are advocating for employers to be temporarily shielded from liability for lawsuits by employees who allege the business is responsible for their exposure to COVID-19 ‒ Groups have also suggested measures that would protect employers from lawsuits if they disclose medical information regarding an employee’s COVID-19 diagnosis • Limitations on liability for mask manufactures were included in a proposed version of the FFCRA, but were removed prior to the statute’s enactment • Senate Majority Leader Mitch McConnell has said he plans to insist that liability protections for employers are included in future COVID-19 relief legislation

38 Coronavirus-Related Whistleblower Claims May 6, 2020 Best Practices and Practical Considerations

• Ensure anti-retaliation policies are maintained and updated to include all relevant protections • Consider conducting additional anti-retaliation training or reminding employees of the company’s anti-retaliation policy • Maintain a mechanism by which employees can anonymously or confidentially report allegations of suspected or actual misconduct and health and safety concerns • Encourage employees to report health and safety concerns and remind them of reporting systems in place • Remind supervisors of the importance of taking employee complaints seriously and the process for reviewing and escalating complaints

39 Coronavirus-Related Whistleblower Claims May 6, 2020 Best Practices and Practical Considerations (cont’d)

• Use objective, job-related criteria for decision-making • Continue to treat the whistleblower the same as other employees • Be discrete. Only share information with necessary parties. • Document employee complaint and the specifics of the concerns raised by the employee • Consult Human Resources and employment counsel before taking any adverse employment action with respect to the employee • Document the non-retaliatory reasons for adverse employment action

40 Coronavirus-Related Whistleblower Claims May 6, 2020 Proskauer’s Resources

• Whistleblower Defense Blog ‒ https://www.whistleblower-defense.com • Law and the Workplace Blog ‒ https://www.lawandtheworkplace.com ‒ Recent Coronavirus blog topics include: ‒ Federal Coronavirus Aid, Relief and Economic Security (CARES) Act Signed into Law ‒ Federal Family First Coronavirus Response Act Signed Into Law ‒ New York State Issues Guidance on COVID-19 Quarantine Leave Law ‒ EEOC Answers Employers COVID-19 Related Questions • Coronavirus Resource Center ‒ https://www.proskauer.com/market-solutions/coronavirus-covid-19-resource-center

41 Coronavirus-Related Whistleblower Claims May 6, 2020 Additional Resources

• Centers for Disease Control and Prevention ‒ https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html ‒ https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business- response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fguidance- business-response.html ‒ https://www.cdc.gov/coronavirus/2019-ncov/communication/index.html • Occupational Safety and Health Administration ‒ https://www.osha.gov/SLTC/novel_coronavirus/standards.html ‒ https://www.osha.gov/Publications/OSHA3990.pdf ‒ https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19 • Equal Employment Opportunity Commission ‒ https://www.eeoc.gov/facts/pandemic_flu.html ‒ https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

42 Coronavirus-Related Whistleblower Claims May 6, 2020 Questions?

43 Coronavirus-Related Whistleblower Claims May 6, 2020 The information provided in this slide presentation is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the firm, our lawyers or our clients. No client-lawyer relationship between you and the firm is or may be created by your access to or use of this presentation or any information contained on them. Rather, the content is intended as a general overview of the subject matter covered. Proskauer Rose LLP (Proskauer) is not obligated to provide updates on the information presented herein. Those viewing this presentation are encouraged to seek direct counsel on legal questions. © Proskauer Rose LLP. All Rights Reserved.