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OSHA Retaliation Claims in the Age of COVID

in Business, Employment, Employment, News

No one likes being fired, especially if he or she feels that the employer treated them unfairly in the process. But finding a lawyer, paying to file a lawsuit, and the time and expense of litigation can be burdensome to someone who may also be job-hunting and/or pursuing unemployment compensation at the same time.

In comes OSHA retaliation. An OSHA retaliation claim can be filed with nothing more than an internet connection or an envelope and stamp. No lawyer is necessary. No filing fee is necessary. The investigation is performed by an OSHA investigator at no cost to the complainant. And, even if the investigator closes the file, the claimant has appeal rights.

Quite simply, all a complainant must do is allege that he or she made a health and safety complaint and his or her employer took adverse action against them, usually a termination but not always. In the past, anything from complaints about being forced to work under dangerous conditions or failures in the provision of safety equipment were enough to put the gears of the administrative agency investigative force into motion. Then a pandemic hit.

Since the start of the pandemic, there has been a significant uptick in the number of OSHA retaliation actions premised on the alleged failure of an employer to follow applicable local, state, or federal guidelines regarding COVID-19. All a complainant must do is allege that his or her former employer failed to follow a health department order or CDC guidance instruction and that – when the employee complained about such – he or she was fired. Due to the number of lay-offs and terminations during the pandemic, these allegations have increased dramatically. And, in many cases, the former employee ALSO sues for retaliation in court simultaneously, a double whammy.

There are numerous steps employers can take both before and after OSHA complaints have been filed. Additionally, responding to and interacting with the assigned OSHA investigator is crucial in determining who takes the upper hand first. Employers must act and they must act quickly. Being prepared is half the battle.

If you have any questions about this topic, please contact Matthew Seeley or your Weston Hurd attorney.

Contact Information

Matthew K. Seeley mseeley@westonhurd.com – 216.687.3291