COVID-19 UPDATE: How Should Employers Respond to Skyrocketing Whistleblower Complaints?

The report on April 10 was stunning. Oregon OSHA had received 2,300 complaints in two weeks. The complaints skyrocketed immediately after Oregon’s stay at home order went into effect on March 23. Only 179 of them were not related to the COVID-19 pandemic.

Some of you may have noticed reports of hospitals threatening disciplinary action against workers who refused to come to work, or who talked to the media about personal protective equipment (PPE) shortages.

OSHA is beginning to receive a lot of whistleblower complaints related to the pandemic— with most of them citing violations of Section 11 (c) of the Occupational Safety and Health Act. This paragraph of the law prohibits employers from retaliating against workers who raise safety and health concerns with their managers or file a complaint.

Some complaints also cite OSHA’s General Duty Clause, 29 U.S.C. § 654, which requires employers to provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The safety situation is particularly hot in high-risk workplaces where there are also ongoing shortages of personal protective equipment (PPE). Ongoing confusion about the kind of PPE that is necessary (or helpful) in different situations exacerbates the scarcity of supplies.

What should employers do?

Other than developing an infectious disease response plan, educating employees about risk and protection, and doing the best they can following OSHA’s COVID-19 guidance, employers may also face a new challenge in the coming weeks.

How should employers respond to employees who are afraid to come to work because they fear contracting the virus at work? There aren’t easy answers to this question except to respond cautiously — and don’t ever dismiss the concern. Employees need to be able to talk about it. Arm yourself with good information, and make an effort to educate your employees as new information becomes available.

Unless employees sincerely believe and can demonstrate that they are in imminent danger, they may not refuse to work. An exception to this may be a situation where the job requires travel to a place where the infection rate is high. That’s a reasonable concern, and hopefully, an alternative can be worked out.

Keep on, keeping on…

Many of the complaints that are being filed through OSHA’s online portal are referred to state OSHA offices, and in an April 13 memo from DC to the regional offices, OSHA stated that the inspection priority should be on the highest risk levels — such as health care organizations and first responders.

Establishments with lower risk levels may not have any onsite inspection when employees file a complaint. “In such cases,” the memo states, “area offices will use non-formal procedures for investigating alleged hazards.” And, “inadequate response to a phone/fax investigation should be considered for an onsite inspection, in accordance with the [Field Operations Manual].”

As the COVID-19 pandemic continues to send shock waves through our communities and world, the impact on the workplace continues to reverberate as well.

If you have any questions about your workplace compliance and employee relations’ challenges — and the evolving changes and new developments regarding OSHA’s guidance on COVID-19 issues, feel free to contact me.

About the Author: James Laboe

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