A blog we published here on May 28, 2020, warned that whistleblower, disability and leave claims against employers may reach a fever pitch as workplaces begin reopening from the COVID-19 shutdown. A recent audit by the U.S. Department of Labor Office of Inspector General (“OIG”) confirms that some of those types of claims already are spiking.
That OIG report, dated August 14, 2020, and made public this week, found that increases in virus-related complaints may severely impair the ability of the federal Occupational Safety and Health Administration (“OSHA”) to investigate such claims promptly. “We found the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving,” the report stated.
In particular, the report indicates that the pandemic has resulted in a 30-percent jump in whistleblower complaints during its first four months as compared to the same period in 2019. OSHA received about 4,100 whistleblower complaints from February through May 2020, according to the OIG report, and about 1,600 of them were related to COVID-19; for example, claims that an employer retaliated against an employee for reporting violations of rules requiring social distancing or personal protective equipment (“PPE”).
Employees who suffer adverse job actions after reporting such violations to a supervisor or a governmental entity in California are not restricted to filing an OSHA complaint. Instead, those employees can retain a lawyer and sue their employers for damages in civil court.
At the same time, employers may see an increase in disability or leave claims, or even other types of discrimination claims, as they reopen their businesses or further restrict their operations in response to the pandemic. Thus, California employers should consider taking the following four steps to reduce the incidence of such costly lawsuits:
First, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.
Second, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy (e.g., a statute or regulation) or the employee’s complaints about reasonably perceived violations of some public policy.
Third, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits. In that regard, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.
Fourth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.
Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions. Obtaining early legal advice also may decrease the frequency or cost of these exorbitant types of lawsuits.