EXECUTIVE SUMMARY

Whistleblowers have complained publicly about the lack of adequate personal protective equipment during the COVID-19 response. These cases show the need for handling whistleblowers properly.

  • Whistleblowers are afforded legal protection in several ways.
  • The public relations cost of appearing to punish a whistleblower may be severe.
  • Employees should have a clear way to report concerns without retaliation.

At the height of the healthcare industry’s response to COVID-19, some hospital employees gained national attention for their criticism of the lack of personal protective equipment (PPE) and supposed failings by their employers. Some employers appeared to retaliate against those whistleblowers, raising questions about how such complaints should be handled.

Whistleblowers are afforded many legal protections under federal and state laws, says Tricia Fratto, JD, co-founder and chief counsel at Ethics Suite, a company in Scottsdale, AZ, that manages misconduct reporting, including whistleblower and misconduct-related investigations.

Most relevant to COVID-19 are the anti-retaliation protections offered to those reporting unsafe working conditions under the Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program, she explains. OSHA’s program enforces the provisions of more than 20 federal protection laws and allows employees to submit complaints directly. In some cases, an enforcement action will follow a complaint.

“Every organization should have internal reporting channels and policies, ideally allowing for anonymous reports,” Fratto says. “Internal anti-retaliation policies that prohibit retaliation against an employee for submitting a good-faith report of internal misconduct or other concerns, such as failure to follow safety regulations, also are critical.”

If a report is received internally, an employer can and should respond to the whistleblower, tell them their concern is taken seriously, and the employer will take any action it determines is necessary, Fratto advises. Then, the employer should plan and conduct a complete and impartial investigation to determine the appropriate and available steps.

“There are many things that an organization should not do as a matter of best practice — for example, fail to respond or investigate — but what it cannot do under any circumstances is retaliate against an employee for making a good-faith report,” she says. “Always keep in mind that when we discuss employment action, it is not just terminating employment. This also can include a change to a less desirable role or schedule, negative performance reviews, being verbally abusive, or threatening other negative consequences, for example.”

Any affirmative steps an employer takes to silence a whistleblower likely are a violation of state and or federal law, Fratto says. Ignoring a whistleblower also may violate the law, depending on the circumstances, but certainly will have extremely negative consequences to an organization.

It will have a chilling effect on internal reports because employees will not trust the employer to respond to their concerns, she explains. This is extremely perilous in general, but particularly so with OSHA-related reports where life and safety are at risk. With no other options, employees will report directly to regulators, Fratto says. Instead of fixing the problems internally, an employer will be exposed to regulatory action, fines and penalties, and other attendant costs.

“Foster an environment where internal reports are encouraged and valued. If a report is received and the steps to respond are not clear, or the employer cannot respond appropriately because of a lack of resources or equipment, seek guidance from outside counsel or a regulator,” Fratto advises. “For the health of an organization and for its ability to continue to focus on providing services instead of the disruption that can come from having to respond to a regulator, this is the best option.”

In some cases, regulatory scrutiny is unavoidable despite best efforts and, in those cases, an employer should fully cooperate and seek guidance from counsel, she says. When dealing with regulators relating to PPE and other workplace conditions related to COVID-19, employers should know that OSHA recognizes the unique challenges related to the pandemic, she says. OSHA has provided for more flexibility in enforcement and has issued temporary guidance in many areas designed to address these challenges.

Handle Whistleblowers Carefully

Every whistleblower should be handled with kid gloves, regardless of the merit of their complaints, says Peter Cassat, JD, partner with Culhane Meadows in Washington, DC.

Employers are entitled to act when an employee’s actions are disruptive to the workplace, and when their actions prevent them from fulfilling their duties, Cassat says. But doing so requires a delicate touch, emphasizing that you are responding because of those concerns and not because you disagree with the employee’s opinion, he says.

“When it comes to someone speaking out about a lack of PPE during a pandemic, it’s easy to look like you are retaliating against the employee for revealing your shortcomings to the public, punishing him or her because they made the organization look bad,” Cassat says. “You may actually be on firm grounds for disciplining this person because they are disruptive or in violation of some legitimate policy, but you can be the one who looks bad in the public eye. A lot of this is more about public relations than employment law.”

Employees who raise occupational safety or health concerns in good faith, either with OSHA or internally with a representative of the individual’s employer, such as a supervisor, human resources representative, or occupational health specialist, enjoy protection from retaliation under Section 11(c) of the Occupational Safety and Health Act of 1970, notes Robert S. Nichols, JD, partner with Bracewell in Houston.

An employee who believes he or she has been subject to retaliation must file a complaint with OSHA within 30 days of any adverse action against the employee for raising the safety or health concern. If OSHA finds merit, the government will generally pursue legal action against the employer under Section 11(c) seeking to reverse the wrongful action and to obtain an appropriate damage recovery for the employee, Nichols says.

A second important federal law is the National Labor Relations Act (NLRA). In addition to encouraging and regulating the formation of unions, that law protects most nonsupervisory private sector employees, in both union and nonunion workplaces, who work together to improve terms and conditions of employment. One or more nonsupervisory healthcare employees can engage in this kind of protected, concerted activity under the NLRA by raising, among other issues, concerns about employee health or safety related to PPE or other COVID-19 workplace concerns, he says.

“An employee can file a complaint with the National Labor Relations Board if the employee suffers some adverse action for speaking out about some workplace condition, and the board will investigate. If the board finds merit, it will pursue administrative action against the employer to force corrective action,” Nichols says. “Many states, including New York, Texas, and California, have laws that specifically protect hospital and other healthcare workers against retaliation for raising good-faith, healthcare-related health or safety concerns.”

Conduct in which employees cannot engage includes acting in bad faith, such as making maliciously false factual claims or improperly disclosing individual patient information. Additionally, employees cannot engage in, or threaten, violent conduct, Nichols says.

All Parties Should Remain Professional

Employees cannot unfairly disparage services or products provided by their employer, he says.

“Employee complaints about PPE or other safety or health concerns should be presented in a professional manner, but those concerns definitely can be raised whether the employer wants to hear those complaints or not,” Nichols says.

If an employer is found to have unfairly tried to silence a whistleblower, the employer could be ordered to reverse some adverse action against a whistleblower, like discharge or demotion, and may have to pay damages, Nichols says. Additionally, and sometimes even worse, the healthcare employer can face adverse publicity that damages both the organization’s public relations and employee relations, he notes.

“Employers should make it clear to employees that the organization welcomes employees raising any concerns about health and safety. Employers should provide multiple alternative avenues for employees to raise concerns, including hotline numbers, grievance procedures, and open-door policies,” Nichols says. “Further, employers should understand if employees raise concerns not using one of these available complaint procedures, their conduct is still likely protected. Employers should never react negatively to complaints about health or safety, even if the employer regards the complaint as lacking merit.”

Show Compliance When Questioned

The majority of employee concerns should be addressed head-on by complying with OSHA requirements and other obligations, says Todd A. Bromberg, JD, partner with Wiley in Washington, DC. That goes to the heart of whether an employee shows a good-faith basis for his or her complaints.

“Disciplining an employee for speaking out is generally counterproductive both from a PR perspective and in opening up the possibility of claims against the employer for retaliation,” he says. “The better course is to showcase the employer’s commitment and efforts to protect the health of its workforce.”

There is not a one-size-fits-all approach to understanding what employers can and cannot do in response to whistleblowers, says Olaoluwaposi O. Oshinowo, JD, special counsel with Wiley in Washington, DC.

“Even during a pandemic, employers retain the right to make decisions, including disciplinary decisions, they believe are in the best interests of maintaining the orderly operations of their business,” he says. “There is a delicate balance between exercising that right and complying with relevant law, and it is best to analyze each situation based on the facts in front of you and your conversations with counsel.”

Beyond the publicity concerns inherent to the current climate, employers face significant potential legal liability for violating the anti-retaliation laws, he says.

“For example, employers who violate the Occupational Safety and Health Act must deal with the workplace interruption created by an OSHA investigation, and they may also be liable for back pay and benefits, compensatory and punitive damages, and fees and costs,” Oshinowo says. “OSHA also may impose civil penalties — ranging from about $10,000 to $135,000 — against employers who it finds to have willfully or repeatedly failed to comply with OSHA standards or correct violations. Violations that lead to the death of an employee can even be subject to criminal penalties.”

Bromberg says that although COVID-19 is an unprecedented situation that has created numerous difficult questions and issues for employers and employees alike, it does not mean the best practices for emerging intact are complicated. Employers should listen and take employee concerns seriously, clearly communicate about their decisions and the basis for them, and document their efforts to address issues that arise, he says.

“Open lines of communication and transparency are the keys to limiting the severity of employee dissatisfaction and the legal risks that arise when employees feel they have no resort but to turn to channels outside of the organization to address issues,” he says. “To the extent an employee’s actions are disruptive and unreasonable, the golden rule is that any discipline must be consistent with the employer’s policies, precedent, and a general sense of fairness.”

Whistleblowers may proclaim their statements are protected by the First Amendment, but those protections only extend to prevent government retaliation for exercising free speech rights, explains Autumn L. Moore, JD, senior attorney with Clark Hill in Los Angeles. However, that does not mean private employers are completely off the hook.

Although employees cannot reveal such things as confidential information or personally identifying information, if employees are making complaints about working conditions possibly violating federal, state, or local laws, then the legality will depend on the content and type of employer, she says.

For example, California employers should proceed with extreme caution before disciplining employees for protesting working conditions, she says. These types of protests and/or public complaints may constitute protected activity under Labor Code section 1102.5, in addition to other similar laws. California’s whistleblower laws prohibit an employer from retaliating against employees for refusing to participate in an activity that would result in a violation of or noncompliance with a local, state, or federal rule or regulation.

“The law also prohibits employers from preventing employees from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body,” she says. “The employee must have reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal law.”

SOURCES

  • Todd A. Bromberg, JD, Partner, Wiley, Washington, DC. Phone: (202) 719-7357. Email: tbromberg@wiley.law.
  • Peter Cassat, JD, Partner, Culhane Meadows, Washington, DC. Phone: (844) 285-4263. Email: pcassat@cm.law.
  • Tricia Fratto, JD, Co-Founder and Chief Counsel, Ethics Suite, Scottsdale, AZ. Phone: (844) 469-6366.
  • Autumn L. Moore, JD, Senior Attorney, Clark Hill, Los Angeles. Phone: (213) 417-5187. Email: amoore@clarkhill.com.
  • Robert S. Nichols, JD, Partner, Bracewell, Houston. Phone: (713) 221-1259. Email: bob.nichols@bracewell.com.
  • Olaoluwaposi O. Oshinowo, JD, Special Counsel, Wiley, Washington, DC. Phone: (202) 719-4275. Email: ooshinowo@wiley.law.