Pandemic reveals a hole in our web of whistleblower protections

Image of a red whistle with a face and target implying that whistleblowers are targetedThe current coronavirus pandemic is revealing a gaping hole in our uneven web of whistleblower protections. The whistleblower protection in the Occupational Safety and Health Act (OSH Act) is too weak to be reliable, and Congress has never passed a whistleblower protection specifically for employees who raise concerns about public health and safety.

American workers have an acute need for protection when they speak up about the risks of transmitting the coronavirus, the lack of personal protective equipment (PPE), and the dangerous conditions that health care, food service, retail and emergency workers face. All these workers serve the public interest, and save lives, when they identify and speak up about shortfalls in our preparedness and precautions.

Sadly, most of these workers do not have the modern whistleblower protections that Congress has provided to millions of Americans on an industry-by-industry piecemeal approach. When Congress first passed the OSH Act in 1970, it was a milestone in federal protection for worker health and safety. Section 11(c) of the OSH Act prohibited employers from retaliating against any worker who files a complaint, testifies, is about to file or testify, or who exercises any right under the OSH Act. 29 U.S.C. § 660(c)(1).

Still, as we have noted previously, Section 11(c) of the OSH Act remains one of the weakest whistleblower protection laws on the books.

Although 2,084 workers complained about retaliation for raising workplace safety issues last year, OSHA found merit in only 14 (not counting settlements). While other whistleblower statutes allow employees to seek review of negative agency decisions, the other 2,070 workplace safety whistleblowers had no right to pursue their claims with an administrative hearing or court action under federal law.

In the 1970’s, the environmental movement led to enactment of half a dozen laws with new whistleblower protections. With the the limitations of the OSH Act in mind, Congress gave environmental whistleblowers a right to a hearing before an Administrative Law Judge of the U.S. Department of Labor (DOL). Congress provided truck drivers with whistleblower protection so speaking up about their need for rest or safe equipment would not cost them their jobs. Whistleblowers in the nuclear energy industry won hard fought protection for raising safety issues that could lead to substantial costs for remediation or potentially catastrophic accidents.

More modern whistleblower protections cover employees of public companies and their contractors who report violations of SEC rules; who raise safety concerns about consumer products and food safety (for issues covered by the FDA); airline employees; seamen; transit employees; and railroad workers when they raise compliance or safety concerns. Even those raising concerns about the safety of containers in international commerce have special whistleblower protection. These laws all permit whistleblowers to present their own cases to ALJs, as long as they file timely complaints (typically within 30, 60, 90 or 180 days).

In March 2020, Congress passed two laws in response to the COVID-19 pandemic. The Families First Coronavirus Response Act (FFCRA), Sections 5102-5110, create protections for using paid sick leave, failing to find a replacement employee to cover, filing a complaint or testifying in a proceeding. The time to file a lawsuit is three (3) years. This law will expire on December 31, 2020. Perhaps Congress, plans to pass another law to make this and other provisions permanent. If so, that would be a good time for Congress to consider the scope of protection American workers really need.

The Coronavirus Aid, Relief, and Economic Security Act (CARES) creates a new protection for people who use substance abuse treatment programs. The law prohibits discrimination in employment, health care, housing, access to courts and social services. This provision, however, does not create an individual right of action, but instead permits HHS to impose civil penalties. State attorneys general can also seek civil enforcement, and U.S. Attorneys can file criminal charges. The time limit for individual complaints to HHS is 180 days.

Neither of these laws protect employees for raising concerns about COVID-19 exposures, or any other workplace health and safety issues. We still need a new law.

We maintain a list of over 100 federal laws that protect whistleblowers from retaliation.

So, what is an employee to do if their employer requires them to work with the public without adequate PPE, or if they are vulnerable to the most dangerous outcomes of infection? At KCNF, we interview clients to explore their options for protection. Those raising concerns about toxic chemicals can find stronger protection under the Toxic Substances Control Act (TSCA) rather than the OSH Act. Employees handling food or working for government contractors may find stronger protections in other laws. The Sarbanes-Oxley Act (SOX) also protects employees to raise concerns about violations of SEC rules, who file complaints with the SEC or use a public company’s internal controls.

State laws or court decisions may provide remedies that are stronger than the OSH Act. In Chicago, Illinois, nurse Lauri Mazurkiewicz sued Northwestern Memorial Hospital claiming her termination was retribution for warning coworkers that the masks provided by the hospital were insufficient protection against COVID-19. She filed the suit in the Cook County Circuit Court.

Employees who have unions, or the right to organize a union, may find protection in the National Labor Relations Act (NLRA) if they act in concert with others to improve their working conditions. No union involvement is necessary for NLRA protection, but having a union can provide an additional layer of protection through union grievance and arbitration procedures.

Unionized nurses at the Kaiser Permanente Medical Center in Oakland, California, took to the streets to protest the lack of PPE as they treat the influx of COVID-19 patients. The union has filed complaints with the California Division of Occupational Safety and Health (“CAL/OSHA”) and also threatened to invoke a “safety stop.”

Congress has never passed a law specifically to protect workers who disclose public health or safety dangers. The OSH Act only protects disclosures about dangers in the workplace. In health care, the 2010 Affordable Care Act (ACA) created a whistleblower protection for those who raise concerns about compliance with Title I (the insurance mandate) but not for any of the patient protection or quality care provisions. So, if you blow the whistle on insurance companies not making all the money they are entitled to – you have a remedy for retaliation. If you blow the whistle on hospital shortcomings that are actually exposing patients to a fatal disease – you have no specific protection under federal law (although you would have protection if you are raising concerns about Medicare or Medicaid fraud or discrimination in health benefits).

It is helpful that potential clients reach out for legal counsel at the earliest opportunity. In particular, if employees consult a lawyer before they make their disclosures, a lawyer can advise them about the possible protections they might have and how to craft their disclosures to make their claims for legal protection stronger.

For example, most whistleblowers might prefer to keep their whistleblowing confidential. While most workers have a right to confidentiality, invoking this right can make it harder to prove that a retaliating employer had knowledge of the protected activity. The decision to reveal one’s protected activity — and thereby document employer knowledge — is an important one, and each whistleblower should carefully consider the advantages and disadvantages of each option.

Healthcare professionals often have state licensing boards or credentialing organizations to answer to. If these organizations are used as a vehicle to retaliate against professionals for refusing to engage in unsafe work, legal counsel can help defend against those efforts. KCNF partner Mary Kuntz wrote a blog about these issues and the legal services that can help.

America needs a new whistleblower protection. Years ago, Congress considered enacting the Paul Revere Freedom to Warn Act, which would protect all American workers who raise any concerns about public health and safety, fraud or violations of any law. It did not pass. An effort to create a protection for health care workers raising concerns about patient safety or standards of care also failed to pass.

This big hole remains in our uneven web of whistleblower protections. While we call on Congress to fix it, whistleblowers will benefit from good legal advice at the earliest possible time.