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Up & Atom

The US Department of Labor’s Occupational Health and Safety Administration (OSHA) released a statement on April 8 reminding employers that they cannot retaliate against workers who report unsafe or unhealthy working conditions during the coronavirus (COVID-19) pandemic. The statement reminds employers that acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.

We believe that OSHA’s statement is a signal to employers that it will use its authority to investigate complaints arising out of COVID-19-related health and safety concerns if sufficient facts support opening an investigation. Most of these complaints will likely fall under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act), but OSHA and employees could also rely on the other anti-retaliation statutes administered by OSHA, depending on the concern raised, the industry in which the employer conducts business, and the facts alleged.

In addition to the OSH Act, OSHA administers the anti-retaliation provisions from more than 20 other statutes. These statutes cover several industries and subject matters, including transportation, healthcare, finance, occupational safety, and environmental protection. Broadly, these anti-retaliation provisions protect workers who raise a concern involving a violation of the specific statute. Workers who believe they have been retaliated against for raising a concern can file a complaint with OSHA either orally or in writing. After receiving a complaint, OSHA is responsible for determining the applicable statute.

OSHA’s COVID-19 page highlights that “more than 20 industry-specific federal laws” administered by OSHA protect employees from retaliation for raising concerns. This appears to signal that OSHA will investigate COVID-19-related concerns under any one of these anti-retaliation provisions, depending on the industry involved and the alleged facts. Using the Energy Reorganization Act of 1974 (ERA) as an example, a concern about a facility’s ability to comply with the NRC’s fitness-for-duty or security requirements due to COVID-19 may be deemed protected under Section 211 of the ERA if the concern implicates nuclear safety. That said, as we recently reported, to be protected, a worker’s allegation of a statutory violation must be “subjectively and objectively reasonable,” but speculative, “profoundly misguided,” or “insufficiently informed opinions” fall short and are not protected.

Given OSHA’s reminder to employers subject to these various statutes that anti-retaliation provisions still apply during the COVID-19 public health emergency, covered employers should continue encouraging employees to raise safety concerns, and continue documenting, evaluating, and addressing such concerns commensurate with the concern’s significance. Employers should also keep concerned employees apprised of developments and decisions during the employer’s evaluation of the concern so that workers know their concerns are being addressed appropriately.

More generally, commercial nuclear and other industries should continue to maintain a safety-conscious work environment—an environment in which individuals feel comfortable raising concerns without fear of retaliation—at all of their facilities amid the COVID-19 public health emergency. Employers should also follow all of the recent guidance issued by OSHA on COVID-19, including recordkeeping, respirators, and PPE, as well as enforcement guidance.

We will continue to track this issue.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.