Whistleblowers and Employee Rights Under the Families First Coronavirus Response Act and Related Safety Measures

The Families First Coronavirus Response Act went into effect as of April 1, 2020. A company’s obligations to employees generally requires expanded Family Medical Leave for company’s employing fewer than 500. Employers may not discharge, discipline, or otherwise discriminate against any employee who takes expanded family and medical leave under the Families First Coronavirus Act.

Covered employees are entitled to emergency paid leave and under this provision employers must provide paid sick time (PST) to employees who are unable to work (or telework) for any of the following reasons:

(1) The employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19.
(2) The employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns.
(3) The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in (1) above or has been advised to self-quarantine as described in (2) above.
(5) The employee is caring for a son or daughter if the school or place of care of the child has been closed or the child care provider of the child is unavailable due to COVID-19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.

The emergency paid leave provisions applies to all private employers with fewer than 500 employees, and there is no employment duration required so employers must provide this benefit immediately to all employees. Full-time employees are entitled to 80 hours of PST, and Part-time employees are entitled to receive pay based on the average number of hours that the employee worked over a two week period.

The Families First Coronavirus Act does not diminish the rights or benefits that an employee is entitled to under any other federal, state or local laws, collective bargaining agreement or existing employer policy.

Employers may also be required to separate employees who are or should be quarantined from other employees under the federal Occupational Safety and Health Act (the “OSHA”). OSHA’s General Duty Clause, found at 29 U.S.C. § 654(a)(1), requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” An employer who attempted to force an employee to come into work when that employee had justifiably self-quarantined – or where, for instance, another employee was a known carrier – may be acting in violation of OSHA. If an employee opposed the employer’s efforts to force attendance to work under those circumstances, the employee may be protected from retaliation under OSHA, which prohibits an employer from discriminating in any manner against an employee because, among other things, the employee exercised any rights afforded under the OSHA.

Employers can and should be held accountable if they retaliate against their employees for reporting unlawful activity in the workplace during the COVID-19 pandemic. Examples of acts that may form the basis for a whistleblower claim may include, but are not limited to:

• retaliation for complaining about violations of leave or closing laws related to the pandemic;
• retaliation for filing a written complaint or charge that a company is in violation of safety or health
  regulations.
• retaliation for raising to the employer that federal, state or local laws are being broken as a result of the employer’s workplace practices or enterprise.

If you believe you have been retaliated against for reporting, complaining, or objecting to your employer’s violation of federal, state, or local laws or regulations as well as other violations of laws in the workplace at this time, contact Henrichsen Law Group, P.L.L.C. for a confidential consultation.