Retaliating Against Employees for Raising COVID-19 Concerns Can Cost You

The Department of Labor has sued a Texas dental practice on behalf of a dental hygienist and a dental assistant who were not reinstated after raising concerns about what COVID-19 safety measures would be in place when the practice reopened in spring 2020.

As more employers are bringing people back to the workplace, OSHA has received more than 5,500 whistleblower complaints from workers who say they were retaliated against for also raising concerns about COVID-19 safety precautions at their workplaces.

According to a New York attorney who handles retaliation complaints, when employees have raised concerns about workplace safety related to COVID-19, some employers have:

• Fired them
• Reduced their hours
• Denied them overtime
• Demoted them
• Made threats
• Transferred them to distant locations
• Assigned school teachers to classes full of students with histories of violence.

Federal law prohibits employers from retaliating against employees who speak up about workplace safety conditions.

In March, OSHA launched an enforcement program targeting employers with large numbers of employees at risk from COVID-19, with priorities on those that have retaliated against workers who raised concerns. OSHA can and has sued employers for pack pay, benefits and compensatory damages for employees.

Employees who believe they have been wronged may have recourse besides complaining to OSHA. Some states permit them to sue their employers. An employment law expert explained, “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, and the remedies vary from state to state.”

Damages awarded by juries in these cases can be large. A jury gave $1.25 million in 2020 to a former railroad employee who was harassed and fired after reporting unsafe conditions. Six-figure damage awards are common.

Protect your company

Potential retaliation claims, whether or not they are valid, are one reason employers need employment practices liability insurance (EPLI.)

These policies cover damages an employer may owe to an employee for “wrongful acts,” including discrimination, harassment, wrongful termination, wrongful discipline, failure to employ or promote, infliction of emotional distress, and other offenses. They also cover the cost of providing the employer with a legal defense.

EPLI policies will not cover you for the cost of penalties assessed by OSHA or state regulators. It also will not pay for punitive damages or the cost of defending against criminal charges.

Many insurance carriers sell these policies. We can help you find an affordable policy providing the protection your business needs.

Steps you can take

The law firm of Littler Mendelson, in a recent blog, recommended that employers ensure that managers and supervisors do not retaliate against employees complaining about COVID-19 safety measures. It recommends the following best practices:

• Never discipline or terminate employees because they raise workplace safety concerns.
• If you are planning to take disciplinary action against an employee who has raised health and safety concerns but is facing the action for unrelated reasons, you need to make sure that those reasons are properly documented and that your action comports with your company policy. You should be able to show that you leveled similar disciplinary actions against other employees who previously engaged in similar conduct.
• Document all health and safety concerns and take all complaints seriously.
• Train supervisors to respect their subordinates’ concerns and to refer and escalate concerns as per company procedures.
• Review and update your policies to explicitly prohibit retaliation. You should also train your management and supervisors on your policies, as well as informing your workers of their right to raise health and safety concerns without fear of retaliation.
• Set up a system for employees to file complaints about retaliation.

BGES Group’s office, located in Larchmont, NY is a full service insurance agency offering, Property, Liability, Umbrella Liability, Business Auto, Bid & Performance Bonds, Inland Marine, Worker’s Compensation, New York State Disability, Group Health, Life insurance, Personal lines and Identity Theft.

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