In April 2020, an executive assistant at a Staten Island health care provider was allegedly terminated for raising COVID-19 related safety concerns about an in-person meeting. In what may be a sign of litigation to come, the Department of Labor has filed suit against the employee's former employer alleging violation of the whistleblower provisions of the Occupational Safety and Health Act. This appears to be the first such case filed by DOL related to COVID-19 safety complaints.
The complaint in Walsh v. Community Health Center of Richmond, Inc. and Henry Thompson alleges that Qiana Nuñez, the executive assistant to the company's Chief Executive Officer, sought to convert a March 17 in-person executive committee meeting to a teleconference. Shortly thereafter, the CEO directed her to keep the meeting in-person, which she did. However, because of concerns over COVID-19 transmission in a crowded conference room, Nuñez stayed at her desk and performed other work.
After Nuñez was terminated, she filed a complaint with the Occupational Safety and Health Administration ("OSHA"). OSHA investigated the complaint and determined that the discipline imposed on Nuñez violated 29 U.S.C. § 660(c)(1), which prohibits discrimination against or termination of an employee who makes a protected health and safety complaint.
This case serves as a reminder to employers to take employee safety complaints seriously, and act with care when imposing discipline or other adverse actions against employees who have raised safety concerns. When disciplinary action is imposed, employers should preserve all documentation concerning the decision making process, as the increase in retaliation claims under OSHA and other laws is likely to continue for some time.
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