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Explaining the lack of COVID-19 whistleblower protections

  • 25 August, 2020

For workers, navigating the pandemic has been a difficult task. One specific challenge worker are facing  is what to do when they are not receiving any meaningful safety protocols against COVID-19 from their employers. In cases where workers decide to raise concerns agains the lack of safety measurements, the law, unfortunately, does not grant these whistleblowers  many protections.

The cornerstone federal act that requires employers to have a safe working environment is known as the Occupations Safety and Health Act. Many workers turn to this act as it can provide them protection from being discriminated or discharged if the worker complains about their working environment’s lack of health and safety. Moreover, the OSH Act can also protect a worker who has decided to no longer work on account of the unsafe working conditions. Yet, it should be noted that the requirements are very strict in classifying a protected work refusal.

Workers may thus believe that in a pandemic the OSH Act may be the perfect resource to turn to if they are concerned about their employer’s lack of COVID-19 safety measures. However, it is not so simple, the OSH Act in many ways does not completely protect workers in a pandemic. The main reason is in the fact that the OSH Act does not have a private right of action. The lack of a private right of action means that if a worker experiences retaliation after reporting unsafe working conditions they cannot sue in court.

Instead of suing in court, Section 11(c) in the OSH Act requires workers to file a complaint with the Occupations Safety and Health Administration ‘OSHA’ and appeal to have OSHA protect them. Therefore, a worker does not automatically receive protection in making a complaint, instead, they must request it first. Ultimately, that request for protection can be either accepted or denied by the decision of a government official, and if its denied then a worker has no other recourse under the act.

The OSH Act has a few other weak points that do not allow it to be a perfect resource, especially under a pandemic. The first is that the act has only a 30 day statute of limitations, which is the shortest when it comes to federal anti retaliation statutes. The second weak point, which was previously referred to, is the strict requirement in defining what constitutes a protected refusal to work.

Jordan Barab, the former Deputy Assistant Secretary for Occupational Safety and Health, once testified to congress saying that Section 11(c), which does not have a private right of action, as well as the statutory right of appeal, are a “notable weakness” in the OSH Act. Barab also was critical of the act’s “inadequate time for employees to file complaints.”

Recently, senators have introduced the Coronavirus Oversight and Recovery Ethics Act (CORE Act). This proposed law would grant whistleblowers, who report the mishandling of government funds given to combat the COVID-19 pandemic, protection from retaliation. Yet, this proposed law does not address the weaknesses of the OSH Act, or have any other meaningful protections for whistleblowers who raise concern about their workplace lack of health and safety measures against COVID-19.

This proposed bill is limited in its protection for whistleblowers who report unsafe practices and measures related to COVID-19. Therefore, for now, workers must still rely on the OSH Act in requesting protection against retaliation.

Source: Natlawreview

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