COVID-19 Stress Manifesting in the Workplace: An Increase in COVID-19 Whistleblower and Retaliation Claims?
By Patrick Hicks, Esq. and Kelsey Stegall, Esq.
Because of the COVID-19 pandemic, employers will be facing multiple challenges in transitioning employees back to work. This includes an increased risk of whistleblower and retaliation claims by employees who allege they were disciplined or discharged for complaining about health or safety concerns relating to the virus. Indeed, there has already been an increase in complaints filed by employees who physically worked in essential businesses, as opposed to working from home, after Governor Steve Sisolak ordered Nevadans to stay at home. These complaints stemmed from a lack of personal protective equipment, social distancing, and other health and safety measures that were implemented during the pandemic—measures designed to reduce employee stress but that are not always successful.
Legal ramifications of whistleblower complaints
The Occupational Safety & Health Administration (“OSHA”) is responsible for enforcing a wide variety of anti-retaliation provisions at the federal level under 23 separate whistleblower statutes. While many employers are familiar with claims under Section 11(c) of the Occupational Safety & Health (“OSH”) Act, which broadly protects employees, remedies under Section 11(c) are limited, a private cause of action is not available to the complaining party, and a worker must file their complaint within 30 days of an adverse job action. However, OSHA also enforces additional statutory provisions that may provide more expansive remedies to the prevailing party, including attorney’s fees and punitive damages in some instances.
Beyond the Section 11(c) claims that may be filed under the OSH Act, employers can also face additional exposure and risks when employees use alternative statutory remedies to raise complaints about an employer’s response to COVID-19.
The risk for employers under certain federal anti-retaliation laws is also increased because a lower causation standard—the “contributing factor” standard—may be applicable in some instances. Specifically, under certain federal anti-retaliation laws, a complaining party may establish that they have a viable claim that should be heard by proving, among other things, that a retaliatory motive played a “contributing factor” in the adverse employment decision. In addition, under the OSH Act, complainants generally do not need to show the alleged violation they complained about actually took place. A viable retaliation claim requires only that they had, among other things, a “good faith” basis for making the allegation in the first instance, which is a low bar to clear. Because statutes vary, in a retaliation case brought by an employee complaining about health and safety issues relating to COVID-19, the precise burden of proof will depend upon the law used to pursue the claim.
Moreover, federal law is not the only source of protection for employees pursuing complaints related to health and safety practices. A majority of states recognize some form of wrongful discharge claim under anti-retaliation statutes or under common law, including Nevada. Employees may be entitled to significant damages if they prove that an employer took adverse action against them because they raised a health and safety concern.
In this unprecedented environment for both employers and employees, employers should be mindful and empathetic of the stressors many of their employees have experienced—and are still experiencing. In transitioning individuals back to the workplace, employers should first and foremost focus on creating a healthy and happy workplace to ease their employees’ concerns.
Simultaneously, employers should be especially vigilant to enforce anti-retaliation policies and procedures when health and safety complaints do arise. Some practical considerations include:
- Promote your employee assistance programs. Communicate the resources available to your employees in an effort to alleviate their stress and anxiety. There are so many services available through these employee assistance programs, such as stress management, counseling, and wellness programs, that will help employees address their stress head-on rather than have it manifest elsewhere.
- Encourage employees to report their health and safety concerns. Create multiple reporting options, including options that allow employees to immediately raise their concerns. Clearly communicate these options to employees.
- Address the concerns raised with empathy and compassion. Follow up individually where possible, and companywide with periodic updates as necessary. An empathetic response will help employees feel heard and alleviate their feelings of stress.
- Employees should never be disciplined or terminated because they raised or escalated complaints about a potential violation of health and safety laws or procedures, including concerns regarding the employer’s response to COVID-19. While there may be independent, non-retaliatory reasons for taking adverse action against a complaining employee, any decision regarding the adverse action should not take into account, or be influenced by, the health or safety complaint.
- If independent reasons justify disciplinary action against a complaining employee, the employer should ensure the reasons are properly documented, consistent with the company’s policies and procedures, and that other employees who engaged in similar conduct, but did not complain of health and safety concerns, received the same disciplinary action.
- Document the specifics of each health and safety complaint, including the time and date, the recipient of the complaint, and the specific concerns that were raised.
- Review and update the company’s policies and procedures that prohibit retaliation, and consider setting aside additional training time now to help reinforce the company’s anti-retaliation rules, and to help prevent retaliation claims from arising.
Ultimately, take health and safety complaints seriously. How your law firm or company responds and adapts to the COVID-19 virus will have a lasting impression on your employees. Leadership, communication, and behavior will set the tone for how employees feel in returning to the workplace and can help alleviate the stress and anxiety that many are already experiencing. Accordingly, take as many steps as possible to prevent health and safety complaints, but if they do arise, take the proper actions consistent with your policies and procedures.
About the authors:
Patrick Hicks, Esq. is the founding shareholder of the Nevada offices of Littler Mendelson. He focuses his practice on representing employers in litigation and court on employment law issues.
Kelsey Stegall, Esq. is an attorney in the Littler Mendelson Las Vegas office. After graduating from Boyd School of Law and clerking in federal court, she now represents employers in employment law matters.
This article was originally published in the “Labor & Employment Law” issue of Communiqué, the official publication of the Clark County Bar Association, (February 2020).
© 2020 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.