Since the start of the pandemic, employers have faced ever-changing and sometimes conflicting guidance from state and federal governments on a variety of workplace topics, from employee leave rights to workplace safety, leaving employers vulnerable to a host of COVID-19-related claims by employees.
Employers have faced increased scrutiny from OSHA in response to employee complaints regarding COVID-19-related safety issues involving anything from the availability of personal protective equipment and cleaning supplies to inadequate social distancing in the workplace.
Moreover, employers may face OSHA retaliation complaints if they take any adverse action against employees who complain—or even make seemingly innocuous statements—about safety issues in the workplace.
Employers must understand their obligation to provide a safe workplace for employees, take employee complaints about workplace safety seriously, and be aware of their rights and obligations in response to an OSHA complaint.
Or they may face on-site inspections, fines, further legal action, and more.
Under OSHA’s general duty clause, employers have a broad obligation to protect workers from “recognized hazards” that could cause serious physical injury or death.
This clause obligates employers to protect workers from COVID-19. To that end, OSHA provides employers with guidance on a number of COVID-19 related topics, including returning to work, face coverings, and worker exposure risk to COVID-19, among others.
OSHA also provides guidance for specific industries.
Employees may file anonymous complaints with OSHA raising workplace safety concerns related to COVID-19, and pursuant to this general duty clause, OSHA has the authority to investigate these complaints.
In most cases, OSHA notifies the employer of the complaint by letter, asks the employer to investigate the allegation, and describe in writing the problems found and the corrective action taken or planned.
The employer must also post the OSHA letter in a location that is easily accessible for review by all employees.
The employer must also provide a copy of the letter to any union representative, which may trigger further employee complaints.
In serious situations, such as where there is an imminent danger of harm, an allegation that physical harm has occurred or a prior failure by the employer to correct a hazardous situation, OSHA is likely to make an on-site inspection, which may lead to an investigation and the imposition of fines.
Employers are also facing an increase in OSHA retaliation claims filed by employees who believe they have been retaliated against by their employer for raising workplace safety concerns.
Retaliation claims can arise even from seemingly innocuous statements by employees regarding workplace safety issues, including statements made in passing to people who may not be supervisors or have the authority to address the issue, as well as formal complaints to management and complaints to OSHA filed by the employee.
Retaliation means that the employee believes that he or she has suffered an unfavorable personnel action—including discipline, termination, threats, decrease in pay and benefits, demotion—for raising workplace safety concerns, a protected activity.
Employers who retaliate against employees for engaging in protected activity can be required by OSHA to reinstate the employee, pay back wages, restore benefits, or provide other remedies.
OSHA will investigate the employee’s retaliation complaint by, among other things, requiring the employer to produce documentation about the allegedly unfavorable personnel action, personnel policies, procedures, and information about the personnel actions that the employer has taken against other employees, among other things.
This is not only a potentially burdensome compliance obligation, but enables the complaining employee to gain access to this key documentation and information, which the complaining employee may then use as a springboard for other litigation against the employer, such as a wrongful termination claim.
Therefore, it’s critical for the employer to provide an organized and properly framed response to the OSHA retaliation complaint.