September 29, 2021

Employment Law

What Rights Do I Have When My Employer Fails to Implement COVID-19 Prevention Policies?

The COVID-19 pandemic has raised numerous workplace issues, leading to a deluge of calls to law firms representing employees and employers alike. Employers want to know if they have to grant an employee’s request to work from home. Employees want to know if they may report or oppose an unsafe work condition. “Why should I expose my family to serious health risks because my employer refuses to require masks or social distancing, and does not contact trace?”  If an employee so protesting suffers workplace retaliation, is he/she a legally protected whistleblower?

Who qualifies as a whistleblower?

The Minnesota Whistleblower Act (“MWA”) prohibits an employer from retaliating against an employee for reporting an “actual, suspected or planned” violation of law. Minn. Stat. § 181.932. Law for purposes of the MWA means a statute, regulation, administrative rule or common law, the latter of which includes contracts with the employer’s suppliers or customers. It’s no defense to a MWA claim that the report in question falls within the employee’s job duties. There is no need to prove in court that an actual violation occurred, so long as (1) the employee made the report in good faith and (2) the suspected unlawful acts, had they occurred, would have resulted in a violation of law. Meaning that to have a legally viable claim, a whistleblower may be wrong on the facts but must be right on the law.

Retaliation under the MWA embraces a wide range of punitive actions, from merely threatening an employee or transferring him/her to a less desirable office location to outright termination. In that regard, it is far more expansive than state and federal anti-discrimination statutes, e.g. Title VII of the Civil Rights Act and the Minnesota Human Rights Act, which require a claim be based on an “adverse employment action,” harm more tangible than (say) a negative performance review or being placed on a performance improvement plan.

Are executive orders a “statute” or “regulation” for Minnesota Whistleblower Act purposes?

Between late 2020 and June 2021, Governor Tim Walz issued a series of Peacetime Emergency Executive Orders relating to COVID-19 prevention in the workplace. The stay-at-home order required all non-essential workers to work from home.  Later, orders required that any employee who could work from home must, required that employers have in place a written COVID-19 Preparedness Plan, and required that masks be worn (with limited exceptions) in “an indoor business.” Violators were subject to a charge of gross misdemeanor, punishable by at $3,000 fine and up to a year in prison.

No Minnesota court to date has addressed whether COVID-related executive orders qualify as a “statute,” “regulation” or “rule” for MWA purposes. The answer, however, is a clear yes. The broad powers vested in Governor Walz were conferred by the Minnesota Legislature. To that extent, they have the force and effect of law.

What if I protest workplace safety now?

The Peacetime Emergency powers under which Governor Walz issued workplace safety requirements expired July 1, 2021. Therefore, any retaliation for reporting COVID-19 related workplace safety issues subsequent to that date requires different legal authority. One candidate may be the Minnesota Occupational Safety and Health Act (“MOSHA”). Like its better-known federal counterpart, OSHA, MOSHA contains various workplace detailed safety requirements, enforced through Minnesota Department of Labor and Industry action as well as private lawsuits.

Most applicable to COVID-19 risk, MOSHA contains broad language under which an employee may refuse to work under unsafe conditions, the definition of which includes risk attributable to “infectious disease,” as well as an anti-retaliation provision for asserting any right authorized under the Act. In the absence of a mask mandate, the Delta variant has made some workplaces highly unsafe, particularly in Minnesota counties with low vaccination rates. It is unclear whether a claimant must file a Complaint with the Minnesota Department of Labor and Industry within 30 days of an adverse action under MOSHA as a precondition to filing suit. To be on the safe side, that would be a best practice.

Are there other laws protecting employees who oppose unsafe workplaces?

Federal labor law protects employees who engage in “concerted activity” to protest workplace safety and other the terms and conditions of employment. Concerted activity occurs where two or more employees take some action of protest, or an individual does so after discussing a workplace issue of general concern with his/her fellow workers. The National Labor Relations Board (“NLRB”) has applied this protection, found in Section 7 of the National Labor Relations Act, to diverse forms of protest. Examples include complaining to HR, circulating a petition or starting a public Facebook group. (They do not, however, include an individual’s mere statement of complaint to a supervisor made in the presence of co-workers, as per a 2019 NLRB ruling.)

Any employee who is fired or disciplined for engaging in such activity is legally protected, and may file a charge with the NLRB.

Contact Our Minnesota Whistleblower Attorneys

If you believe you have suffered retaliation on account of engaging in whistleblowing activities, please contact the experienced employment lawyers at Wanta Thome PLC for a free initial consultation.