Many workers are treated as both "essential" and "disposable"
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| Trump visits a Honeywell mask factory, mask-less of course. Evan Vucci, AP |
The dozen or so other workers at the facility
followed suit. There was no way to maintain a safe distance from one another on
the shop floor, where they made safety mats for machines, and a few of the men
had been out sick with flu-like symptoms. Better safe than sorry.
Management was not pleased. Collins got a text message from one of his supervisors saying masks were to be used to protect workers from wood chips, metal particles, and other occupational safety hazards.
“We don’t
provide or for that matter have enough masks to protect anybody from Corvid-19
[sic]!” If workers didn’t stop using the masks for that purpose, the supervisor
texted, “we’ll have to store them away just like the candy!”
“I was shocked,” said Collins, 38. “They weren’t taking it
seriously.”
Shortly after that, Collins left for a planned vacation. When he
returned a week later, the company told him to quarantine at home for two weeks
because he’d been traveling.
But when the quarantine ended, Collins didn’t want to go back to
work. Co-workers, he said, told him that recommended safety measures such as
wearing masks and maintaining social distancing hadn’t been implemented. When
he told human resources that he feared becoming infected and endangering his
mother and his 8-year-old nephew who live with him, he said, he got an
ultimatum: Return to work or resign.
Collins stayed home and says he was fired. He hired a lawyer and filed a complaint in the Superior Court of New Jersey under the state’s whistleblower law, the Conscientious Employee Protection Act.
The law prohibits employers from firing, demoting, or otherwise retaliating against workers who refuse to take part in activities they believe are incompatible with public health and safety mandates.
As many employers, with the strong encouragement of the Trump administration, move to bring employees back, a growing number of workers are resisting what they feel are unsafe, unhealthy conditions.
In recent months, a
few states have passed laws specifically aimed at protecting workers who face
Covid-related safety risks and retaliation for speaking up about them. Some
states, like New Jersey, have whistleblower protection laws already. But
advocates say stronger federal protections are needed.
The Occupational Safety and Health Administration, part of the
U.S. Department of Labor, is responsible for enforcing 23 federal whistleblower
statutes that protect workers from retaliation if they report workplace safety
violations, among other problems.
But according to a new analysis, the
agency isn’t up to the task. The National Employment Law Project, a workers’
advocacy and research group, found that of 1,744 Covid-related retaliation
complaints filed with OSHA between April and mid-August, 20 percent were
docketed for investigation and 2 percent were resolved. More than half were
dismissed or closed without investigation.
“Even before Covid, workers had a really bad track record of
getting any justice for their concerns if they were retaliated against,” said
Debbie Berkowitz, director of the worker health and safety program at the
National Employment Law Project and a former senior OSHA official.
The numbers are growing. Whistleblower complaints filed with
OSHA increased by 30 percent between February and May, to 4,101, according to an August
report by the Department of Labor’s Office of the Inspector General that
criticized the agency’s handling of the complaints.
Nearly 40 percent of the complaints — 1,618 — were related to
Covid-19, the report found, filed primarily by workers who claimed they were
punished for reporting workplace safety violations. Those could include, for
example, not having appropriate personal protective equipment or sanitation
materials, or a lack of social distancing on the job.
“Even before Covid, workers had a really bad track record of
getting any justice for their concerns if they were retaliated against,” said
Berkowitz.
While complaints rose, the number of whistleblower investigators
decreased from the previous year, according to the report. The average time it
took to close an investigation at the end of March was roughly nine months.
Worker whistleblower protections under the Occupational Safety
and Health law are “incredibly weak” compared with whistleblower statutes that
protect employees who report other types of wrongdoing, Berkowitz said. If OSHA
dismisses a complaint, workers have no right to appeal the decision, and once
they file a complaint with OSHA they aren’t permitted to take their case to
court on their own, she said.
Consumer advocates would like to see those provisions changed.
Advocates have urged OSHA to adopt mandatory Covid safety standards for workplaces, but the agency has declined to do
so, maintaining that its “general duty clause,” which requires
employers to maintain a workplace free from hazards likely to cause death or physical harm, is
sufficient.
“The Administration has remained committed to providing
the Whistleblower Protection program with the resources it needs to fulfill its
mission,” a spokesperson for the Department of Labor wrote in an email to KHN.
“In fiscal year 2020, OSHA asked for and received five new full-time employees
and requested an additional ten in the President’s budget for fiscal year
2021.”
If workers don’t pursue a whistleblower complaint through OSHA,
they can file a state lawsuit claiming “wrongful discharge” or use a state’s
whistleblower law, as Collins did.
According to a Covid employment litigation tracker by Fisher Phillips, an employment law firm, since
the beginning of the year 169 retaliation/whistleblower lawsuits have been
filed across the country — the second-biggest category, behind suits related to
remote work/leave, with 206 cases. An additional 27 lawsuits have been filed
for wrongful discharge.
Juan Carlos Fernandez, the Morristown, New Jersey, attorney
representing Charles Collins, said he’s seen a significant uptick in inquiries
from workers about safety concerns in recent months. Before the pandemic began,
he typically received one or two such calls per month. Now, he gets three or
four a day.
Many callers say they were terminated after they asked for
protective equipment on the job, Fernandez said. Others had asked for time off
to care for a family member or a child whose school had closed because of
Covid-19 and then were told not to come back to work.
In addition to reporting safety violations, Collins’ lawsuit claims, he was fired for asking to take time off. Under the federal Families First Coronavirus Response Act, employees are generally entitled to two weeks’ paid leave if they’re quarantined, and another two weeks’ paid sick leave at two-thirds pay to care for a child whose school has closed, as well as expanded family and medical leave.
Collins has cared for his nephew since his sister
died two years ago in a car accident. His nephew’s school closed in March
because of Covid-19.
Collins said his employer, ASO Safety Solutions, paid him for
only the first week of his company-ordered quarantine. Any additional time off
would come out of his accrued sick and vacation time, he was told.
ASO Safety Solutions didn’t respond to requests for comment, nor
did the law firm representing the company.
In his response to the complaint submitted to the court, the
lawyer representing the company denied that ASO had retaliated against Collins
for whistleblowing, asserting he had resigned. The response, by John Olsen,
with Ferdinand IP Law Group, also said that the provisions of the Families
First Coronavirus Response Act do not apply to the company. The lawyers have
exchanged requests for discovery, Fernandez said, which should be answered in
the next several weeks.
A few states and cities have stepped in to help whistleblowers.
Virginia was the first to put in place statewide workplace safety standards related to Covid-19, spurred by concerns from
workers in poultry plants, said Rachel McFarland, a staff attorney at the Legal
Aid Justice Center in Charlottesville. The standards include specific
provisions protecting workers from retaliation for raising safety concerns or
refusing to work in a location they believe is unsafe.
Colorado and the cities of Philadelphia and Chicago likewise
passed laws prohibiting employers from retaliating against workers who raise
Covid-related safety concerns, refuse to work in unsafe conditions or take time
off to minimize the transmission of the virus.
But these laws are the exceptions, said Brent Newell, a senior attorney at Public Justice in Oakland, California, who has represented the interests of workers in meatpacking plants. “Many states haven’t done that and won’t do that,” he said. “For the federal government to put it on the states to protect workers is wholly and fundamentally inadequate.”
Michelle Andrews reports for Kaiser Health News.
This article was originally published by Kaiser Health News and is republished here under a Creative
Commons license.
