As the coronavirus pandemic continues to wreak havoc on the American labor market, another disturbing trend is on the rise: reports of employees being threatened, disciplined, or fired for complaining about lack of personal protection equipment (PPE).
In general, your employer cannot fire you, demote you, or retaliate against you in any way for complaining about workplace safety. But labor and employment laws are complicated, and many workers do not understand their legal rights.
If you believe your work environment is unsafe and your job will be in jeopardy if you complain, there are federal and state laws that offer protection, and resources that can help you better understand your options.
Before you complain about a lack of PPE you need to understand what your employer is legally obligated to do. Not all jobs require the same safety measures, even in the midst of a pandemic.
Under the federal Occupational Safety and Health (OSH) Act, your employer must provide the type and amount of PPE necessary to maintain a safe work environment. The Occupational Health and Safety Administration (OSHA) has issued safety guidelines that your employer should follow during the pandemic. The Center for Disease Control (CDC) has issued COVID-19 recommendations as well.
The need for PPE is currently assessed by the degree of risk associated with your job. High risk workers include:
People working in these fields will need greater protection, such as N-95 respiratory masks, gloves, and goggles. Most workers, however, have a much lower risk of exposure and will not need the same level of PPE to safely perform their jobs.
The OSH Act requires employers to keep the workplace free of hazards, and outlaws retaliation against workers who raise safety issues. If you believe your workplace is unsafe because of lack of PPE, you should raise your concerns with your supervisor or human resources department. If your employer fails to act, you should file a formal OSHA complaint.
The OSHA website does a good job of explaining how to file a safety and health complaint. It also provides answers to frequently asked questions. Generally, OSHA will conduct an investigation and depending on the results, your employer could be fined and/or required to provide PPE.
It’s illegal for your employer to fire you for complaining about workplace safety or for filing a formal OSHA complaint. This is known as a retaliatory discharge and is specifically forbidden by the OSH Act.
If this happens, you need to file a whistleblower complaint with OSHA. Don't hesitate: the complaint must be filed within 30 days of the retaliation. You will also need to gather evidence to support your claim.
If you are successful, OSHA could restore your job as well as lost earnings and benefits. It could also levy a steep fine against your employer.
You can bypass the normal OSHA complaint procedures and refuse to go to work if you believe your workplace is seriously unsafe. Understand, however, that if you're fired for staying home you'll need to prove that you had a reasonable belief that you were in imminent danger.
Danger is imminent if it presents an immediate threat of death or serious physical harm. Under the law, you can refuse to work if:
In addition to taking these steps you must do the following:
Note that "imminent danger" can be difficult to prove, especially if your employer is taking steps to minimize the risk of COVID-19 transmission. For that reason, it’s a good idea to try to follow the normal OSHA complaint procedures if possible. But you do have the legal right to refuse to go to work if you are in imminent danger, and it would be illegal for your employer to punish you for doing so.
The National Labor Relations Act (NLRA) is a federal law that protects covered workers from unfair labor practices. Under the NLRA, workers have certain rights that include discussing workplace safety, filing a complaint with the National Labor Relations Board (NLRB), and in some cases, walking off the job if dangerous work conditions persist.
Like the OSH Act, the NLRA protects workers from retaliatory discharge. In other words, you would have a valid wrongful termination claim if your employer fired you for complaining about a lack of PPE or for filing a complaint with the NLRB. Speaking out in public about workplace safety, including through social media, is a protected concerted activity under the NLRA. That means your employer generally can't punish you for engaging in this conduct.
The American With Disabilities Act (ADA) applies to private employers with 15 or more employees and prohibits discrimination against workers who have a recognized disability. The Equal Employment Opportunity Commission (EEOC) has issued guidance on COVID-19 and the ADA, and specifically recognizes that workers with preexisting disabilities could be at greater risk of suffering COVID-19 complications.
If you have a disability that makes you more vulnerable to the coronavirus, you have the right to request a reasonable accommodation, which could include additional PPE or flexible working arrangements. Your employer generally must provide some form of accommodation unless doing so would cause an "undue hardship." And, it's against the law for your employer to punish you for making such a request.
If you're fired for complaining about a lack of PPE, the laws of your state could offer additional protection. In fact, many state labor and employment laws provide broader protection than their federal counterparts.
About half the states, for example, have workplace safety laws that are modeled after the OSH Act. Sometimes these laws have additional protections and remedies when it comes to workplace safety.
There are also some unusual laws that might help. Case in point: Connecticut has a statute that protects workplace free speech so long as it relates to a matter of public policy (Conn. Gen. Stat. §31-51q). There’s a chance that complaining about lack of PPE during a deadly pandemic would qualify.
If your employer has fired you for complaining about a lack of PPE, you need to contact an experienced employment attorney as soon as possible. Wrongful termination claims are complex, and the stakes couldn’t be higher when you’ve lost your job in the midst of a pandemic. Take some comfort, however, in the fact that there are laws that were designed to protect you in this situation.