Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.
On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.
Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”
Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Whistleblower protections under the OSH Act
Under section 11(c) of the OSH Act, employers are prohibited from retaliating against employees who engage in protected activity related to safety or health in the workplace. Specifically, section 11(c) states:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
29 U.S.C. section 660(c)(1).
To make out a prima facie case of retaliation under section 11(c), an employee must show (i) the employee engaged in protected activity under the Act, (ii) the employer knew or suspected that activity, and (iii) a causal link exists between the protected activity and adverse action (29 C.F.R. section 1977). Several factors make it relatively easy for an employee to establish a prima facie case. First, protected activity is broadly defined and can encompass a range of activity from an employee filing a complaint directly with OSHA to an employee complaining to their employer about the employer’s testing process under the ETS. Importantly, an employee does not have to prove an actual violation, but only that the employee made a good faith, reasonable complaint.
Second, an employer does not have to have actual knowledge that the employee engaged in protected activity; rather, knowledge can be inferred depending on the circumstances. Third, a cognizable adverse action is broader than ultimate employment decisions, like termination, and includes lesser actions such as discipline or a change in job duties. Finally, while a “but for” causation standard is applied, OSHA does not require the protected conduct to be the sole reason for the adverse action; it only needs to have been a substantial reason.
Once an employee establishes a prima facie case, the employer can raise a non-discriminatory reason for the decision at issue as an affirmative defense. The employee can attack the employer’s stated reason by showing it is pretextual.
Administrative process for OSH Act whistleblower claims
There is no private cause of action under section 11(c). Rather, if an employee believes they have been discriminated against in violation of section 11(c), the employee has 30 days after the violation to lodge a complaint with the Secretary of Labor. Typically, the DOL will then investigate the complaint and determine whether there is reasonable cause to believe a violation occurred. Any settlement reached during the investigative phase must be approved by OSHA and will not be approved if it contains broad confidentiality or non-disparagement provisions.
If the DOL determines the complaint to be substantiated, it may file suit in a federal district court. The Secretary of Labor can also proceed to file suit without first conducting an investigation. The DOL can seek to enjoin the violation or obtain other relief, such as reinstatement with back pay or compensatory and punitive damages. OSHA’s jurisdiction under section 11(c) is not exclusive, and employees can seek remedies under grievance arbitration proceedings pursuant to a collective bargaining agreement or petition other agencies, like the NLRB or EEOC, for relief.
Given the Biden administration’s pro-employee stance and its aggressive push to combat COVID-19, the threat of DOL action should not be underestimated.
State whistleblower laws
While there is no private cause of action under section 11(c), several states have laws that provide whistleblower protections for employees that complain of violations of health and safety laws, which would extend to complaints of non-compliance with the ETS (or the state OSHA plan equivalent). Such states include California, Colorado, Delaware, Florida, Hawaii, Illinois, Maine, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oregon, Rhode Island, and Virginia. Employers should be cognizant of the relevant laws in the jurisdictions where they operate.
Once the ETS takes effect, employers should regularly review their compliance with the ETS and promptly investigate and respond to all employee complaints alleging any failure to comply (or any other health and safety concerns). In the event an employee raises concerns regarding compliance, employers should consult with legal counsel before taking any actions with respect to the employee that could be viewed as adverse.
If you have any questions or concerns about the ETS or related whistleblower protections, members of Reed Smith’s experienced Labor and Employment Group are ready to speak with you.
On November 6, 2021, the U.S. Fifth Circuit Court of Appeals stayed the ETS pending expedited judicial review. Several legal challenges to the ETS have now been filed in various federal courts of appeal, and on November 16, 2021, a lottery will be held to determine which court will hear all of the legal challenges. That court will rule on whether the stay of the ETS will stand.