Wednesday, October 27, 2021

Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues

An employee sends this email to all of his coworkers: "It has come to my attention that an employee has tested positive for COVID-19. I feel it is important to inform all employees of the current situation."

An hour later management fires that employee. Their reason? His job was to fix cars, not police positive Covid tests in the workplace. 

That's exactly what the Department of Labor alleges happened at an Austin, Texas, car dealership in December 2020. Earlier this month, the agency filed suit under section 11(c) of the Occupational Safety & Health Act, which protects employees from retaliation for exercising their rights under the Act.

According to the lawsuit, Michael Pacho, a mechanic working for the dealership, learned that a co-worker who had been in close contact with other employees in the workplace had tested positive for Covid. When management ignored Pacho's efforts to bring this health and safety issue to its attention, he fired off the above all-company email. 

According to OSHA Regional Administrator Eric S. Harbin in Dallas, "No worker should ever fear losing their job for raising workplace safety and health concerns. OSHA's investigation and U.S. Department of Labor's action in this case show we will enforce these protections vigorously." Adds Regional Solicitor of Labor John Rainwater in Dallas, "This employee acted out of real concern for their safety and that of their coworkers, and their actions are protected under federal law. The law also protects whistleblowers from retaliation by their employer and holds employers accountable when they do."

Or to put it differently, an employee complaint about health or safety is a reason to address the alleged health or safety problem, not an excuse to fire the employee(s) who brought it to your attention.