Covid-19 Whistleblower Litigation is Surging: Workplace safety compliance reduces employer exposure

In Michigan, an employee alleging whistleblower retaliation pertaining to COVID-19-related workplace safety issues may file an action in court pursuant to Michigan’s Whistleblower Protection Act (WPA) or a complaint with Michigan’s Occupational Safety and Health Administration (MIOSHA).

From Jan. 30, 2020 to March 17, 2021, whistleblower retaliation cases represented the largest category of COVID-19-related litigation filed in Michigan courts, accounting for 37% of such litigation and ranking Michigan sixth in the nation for whistleblower filings (fisherphillips.com/covid-19-litigation).

During the first six months of the pandemic, the U.S. Department of Labor Office of Inspector General found that approximately 30% more OSHA complaints were filed when compared with the same period in 2019, with 39% of such complaints directly linked to COVID-19.

A comparable increase in COVID-19-related complaints was also seen in state OSHA-certified programs. MIOSHA recently indicated that it plans to extend its COVID-19 Emergency Rules (effective Oct. 14, 2020 to April 14, 2021) through September 2021, which include requirements for a COVID-19 Preparedness and Response Plan, infection prevention and health surveillance, industry-specific protocols, training, and specific requirements for masking, social distancing, and remote work when feasible.

With more than 100 million COVID-19 vaccinations given and recent statistics showing a decline in the number of cases, hospitalizations and deaths, many employees remain concerned about their risk of exposure in the workplace, while others see such progress as a reason to relax masking, social distancing and other mitigation efforts. These varying perspectives create a unique challenge for employers who must continue to enforce the MIOSHA Emergency Rules and avoid the risk of exposure to liability from whistleblower complaints.

The Whistleblower Protection Act (WPA)

An understanding of how the WPA works will assist employers in reducing their exposure to retaliation claims. The purpose of the WPA is to protect the public by protecting the reporting employee from subjection to adverse employment actions. As such, the WPA is liberally construed to favor the reporting employee who it seeks to protect.

An employer with one or more employees is subject to the WPA. The circuit court has exclusive jurisdiction over WPA actions, regardless of the amount in controversy, and a plaintiff bringing a WPA claim has the right to a jury trial.

To establish a prima facie WPA case, the employee must that show that s/he: 1) engaged in a protected activity; 2) was subjected to an adverse employment action; and 3) a causal connection existed between the protected activity and the adverse employment action. A “protected activity” occurs when an employee reports or is about to report an employer’s violation or suspected violation of law, regulation, or rule to a public body, or participates in an investigation related to a whistleblower complaint held by a public body or in a court action.

The WPA protects employees who, in good faith, make or are about to make a report of a violation even if there is no actual violation of law, but does not protect employees who knowingly make a false report of a violation. The WPA defines “adverse employment action” more narrowly than other state discrimination laws, requiring the employee to demonstrate “termination, threats, or other discrimination against an employee regarding compensation, terms, conditions, location, or privileges of employment.”

To establish the existence of a “casual connection” between the protected activity and the adverse employment action, the employee must show that the employer knew of or believed that the employee engaged in a protected activity. Merely showing a close temporal connection between the two events, without more, will not establish a causal connection.

The remedies available to a prevailing plaintiff include “reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies.” In addition, a prevailing plaintiff may collect emotional distress damages by proving they are related to the WPA violation, and be awarded the costs of litigation, which include attorney fees and witness fees.

MIOSHA Retaliation Complaints

Under MIOSHA’s anti-retaliation provisions, an employee has the right to file an administrative complaint with the agency that is timely filed within 30 days of the event or occurrences, and stems from a safety and health issue. Specifically, MIOSHA protects an employee who “exercises a right afforded under the act on behalf of themselves or others and who files a complaint under, institutes a proceeding under, or testifies or is about to testify in a proceeding brought under the act from retaliatory action or discrimination.”

The agency will investigate the complaint and issue a determination, which is subject to appeal before an administrative law judge with the Michigan Office of Administrative Hearings and Rules, who issues the final decision.  An employee who seeks to file an action under the WPA when the employer’s wrongful conduct also violates the MIOSHA, is not required to file with MIOSHA.

Best Practices for Reducing Exposure to Whistleblower Claims

Employers can reduce their potential exposure to COVID-19-related whistleblower claims by ensuring their COVID-19 Preparedness and Response Plan is compliant and evenly enforced. In this regard, on March 12, 2021, OSHA published a National Emphasis Program in effect through March 12, 2022, focusing on workplace COVID-19 compliance, including increased announced and unannounced site inspections.

Additional employer best practices include encouraging employees to report health and safety concerns, training management on receipt of safety complaints and investigation, updating anti-retaliation policies, and working with legal counsel to ensure compliance and reduce risk of exposure to liability.

Janis L. Adams of Danbrook Adams Raymond PLC is an experienced employment law attorney and business owner. You can reach her at jadams@darlawyers.com.

 

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