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Legal experts expect wave of COVID-19 whistleblower retaliation suits

In recent weeks, state and federal courts have seen a growing number of lawsuits from workers alleging they were fired for raising COVID-19-related health and safety concerns including a lack of personal protective equipment (PPE).

The complaints, also being filed with the Occupational Safety and Health Administration (OSHA), have largely come from “essential” workers like nurses, first responders and food suppliers. But as businesses reopen and employees return to work, coronavirus-related claims will likely also rise in non-essential workplaces like professional service firms, according to employment attorneys who specialize in whistleblowing and retaliation cases at New York-based law firm Proskauer Rose LLP.

The coming wave of complaints, which the attorneys describe as “the tip of the iceberg,” will likely hinge on the following laws and regulations.

Occupational Safety and Health Act

Between January and early April, OSHA reportedly received more than 3,000 coronavirus-related complaints related to OSHA requirements including that employers provide a workplace “free from recognized hazards,” and in certain industries the use of gloves, eye and face protection, and respiratory protection.

OSHA issued a press release in early April “reminding employers that it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.”

OSHA’s ban on retaliation is described in the Occupational Safety and Health Act, which “allows the secretary of labor to sue on the worker’s behalf to obtain reinstatement, back pay with interest, compensatory damages, punitive damages and other appropriate relief,” the attorneys say.

NLRA

A COVID-19-related decision by the National Labor Relations Board says that health care workers who are fired for raising concerns about working conditions may have a retaliation claim under the National Labor Relations Act. If it finds a violation of the NRLA, the NLRB is authorized to issue a cease-and-desist order and take steps such as rehiring employees with or without back pay, the attorneys explain.

COVID-19-Related Leave Laws

“Recently enacted federal, state and local laws, including the Families First Coronavirus Response Act, or FFCRA, are already becoming a source of retaliation claims based on requests for leave associated with COVID-19,” the attorneys write, noting that workers can also bring similar claims under the Americans with Disabilities Act.

State COVID-19 Retaliation Laws

In mid-April, Washington Gov. Jay Inslee issued COVID-19-related protections for “high-risk” workers who are either over 65 or those of any age who have certain chronic underlying health conditions.

For all of your coronavirus-related questions, or advice about L&I, workers’ comp or other employment law claims, contact the attorneys at Emery Reddy. We help workers.

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