By Ehsan Tabesh, Partner, Fisher Phillips
Last month, the U.S. Department of Labor Office of Inspector General (“OIG”) confirmed what many have warned for months: a rapid rise in COVID-19 related workplace safety whistleblower retaliation claims with the Occupational Safety and Health Administration (“OSHA”). The predicted deluge of complaints, and the OIG’s report detailing the agency’s planned response, place employers on notice of a new wave of COVID-19 litigation that is upon us. Hospitals, physician practices, and other health care providers are especially impacted and should take steps to minimize risks associated with retaliation claims in the wake of the COVID-19 pandemic.
The OIG’s Report
The OIG’s August 14, 2020 report titled “COVID-19: OSHA Needs to Improve Its Handling of Whistleblower Complaints During the Pandemic,” found that the pandemic has significantly increased the number of whistleblower complaints lodged with OSHA. From February 1 through May 31, 2020, the report tallied 4,101 complaints, a 30% increase in similar complaints received during the same period in 2019.
Since March 2020, there has also been a surge of retaliation lawsuits in state and federal courts across the country, which now represent one of the largest categories of COVID-19 litigation. The reported retaliation cases include allegations of discipline, furloughs, or terminations, following reports or complaints of workplace safety violations, including social distancing guidelines, the failure to provide personal protective equipment, and health care workers speaking out on hospital conditions, which OSHA’s whistleblower investigations manual identifies as protected conduct. Out of the 1,618 COVID-19-related retaliation complaints received, OSHA has screened and administratively closed approximately half, while the remaining half were docketed, which begins the fact-gathering process by notifying concerned parties of OSHA’s intent to open a formal investigation.
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The report also notes that a shortage of OSHA investigators has delayed and hampered OSHA’s ability to complete investigations. In response, the OIG recommends that OSHA fill up to five open whistleblower investigator vacancies and consider extending a pilot triage program to all regions that will speed-up intake and investigations of retaliation complaints. The proposed changes, which are expected to be made, follow the OIG’s declaration, earlier in the year, that OSHA and other government agencies should prioritize “detecting, investigating, and prosecuting wrongdoing” related to the COVID-19 crisis, including any retaliation claims.
Federal and State Laws Create Multiple Avenues for Asserting Retaliation Claims
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An employer’s risk of exposure from retaliation claims is particularly acute because of the variety of ways that employees may assert retaliation complaints or causes of action. OSHA enforces the whistleblower provisions of more than 20 whistleblower statutes. While many are familiar with claims under Section 11(c) of OSHA, which broadly protects employees from exercising rights under the Act, OSHA also enforces additional statutory provisions that provide more expansive remedies to prevailing parties, including attorneys’ fees and punitive damages.
The risk for employers under some federal anti-retaliation laws is also heightened because a lower causation standard – the “contributing factor” standard – may apply under certain statutes. Specifically, under certain anti-retaliation laws, the complainant may establish a viable retaliation claim by merely showing that a retaliatory motive played “a contributing factor” in the adverse employment decision, as opposed to the primary or only factor.
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Additionally, employees generally do not need to establish that there is an actual violation of law at issue. A retaliation claim requires only that the complainant has a “good faith” basis that a law has been violated, which is a fairly easy burden to meet. Moreover, the majority of states, including Texas, recognize some form of wrongful discharge or retaliation claim under state laws that are specific to employees of hospitals and other health care facilities, which may entitle prevailing employees to significant damages if they prove that an employer took the adverse action because they raised a health and safety concern.
Indeed, one consequence of the backlog of retaliation complaints with OSHA maybe that complainants are more likely to seek relief in courts by asserting claims under state whistleblower statutes or common law retaliatory discharge claims.
What Can Employers Do?
OSHA’s staffing changes, coupled with the rise in health and safety complaints in the wake of the COVID-19 pandemic, will undoubtedly continue to increase the number of retaliation cases across the country, as a full complement of agency investigators hone in on safety concerns and possible retaliation claims against workers who raise such concerns. At the same time, employers continue to grapple with the need to address widespread decline in business activity, by pay-cuts, hours reductions, furloughs, and terminations, all of which elevate the risk of retaliation claims.
In light of this environment, employers and, in particular, healthcare providers, should be especially vigilant to take steps to prevent and respond to retaliation complaints:
- Continue to Comply with Workplace Health and Safety Standards. Any comprehensive effort should begin with and prioritize ongoing compliance with OSHA’s workplace health and safety standards, including requiring proper social distancing and ensuring the availability of masks, gowns, gloves, and other PPE. Health care workers and their representatives should be consulted and given a voice in devising and monitoring safety procedures and protocols related to COVID-19.
- Update Reporting Procedures to Ensure Proper and Anonymous Channels for Complaints. Company policies and procedures should be updated to ensure that there are multiple, anonymous channels to immediately raise health and safety concerns. Employers should also train supervisors and other personnel on how to appropriately respond to and escalate complaints.
- Properly Document Employee Performance, Misconduct, and Other Bases for Adverse Employment Decisions and Consider the Timing of the Decision. It goes without saying that employees should never be disciplined or terminated because they raise or contribute to complaints about potential health and safety violations. At the same time, there may be independent, non-retaliatory reasons for taking adverse action against an employee who previously raised a health and safety concern. However, any decision about taking an adverse action should consider the variety of factors that OSHA and courts examine when determining whether there is a retaliatory motive. For example, employers should ensure that there are well-documented reasons for the adverse employment action and that other employees who engaged in similar conduct, but who have not complained, receive the same disciplinary action. A strong documentary record can be the difference between significant liability and the ability to present a convincing defense in any OSHA investigation or civil litigation. Employers should also be mindful of the timing between the adverse action and the complaint. Courts uniformly recognize that close proximity between a complaint and an adverse employment action can raise the inference of retaliatory motive.
To be sure, these are difficult and tumultuous times for employers and employees, alike, and for as long as the pandemic persists, the risks of lawsuits and disputes alleging whistleblower and retaliation claims are unlikely to subside. Health care employers should act proactively to minimize their risks of exposure while ensuring the health and safety of their workers, by adopting the strategies described above.