After an Occupational Safety and Health Administration (OSHA) whistleblower investigation, the US Department of Labor’s (DOL) Office of the Solicitor filed suit against a physician and his practice in March 2022, alleging they illegally fired an employee concerned about the practice’s failure to implement state-mandated protocols to protect employees from COVID-19. The employee later filed complaints with state health officials. An investigation revealed that the physician fired the employee the same day the health department contacted his office, and he specifically cited the employee’s contact with state officials as the reason for the termination.
On August 6, 2024, the court agreed that the defendants had retaliated against the employee based on protected activity. The court permanently forbade the physician and the practice from future violations of OSHA’s anti-retaliation provisions and required them to prominently post a notice for employees stating that the employers will not discharge or in any manner discriminate against any employee for engaging in activities protected by section 11(c) of the Occupational Safety and Health (OSH) Act of 1970. The court also ordered the physician to pay a contempt fine of $1,250 to the court for discovery violations.
The court will hold a hearing on the department’s request that the physician and the practice pay damages to the terminated worker for all lost wages and benefits resulting from their unlawful firing; reimburse them for costs, expenses, and other pecuniary losses incurred, and compensation for non-economic losses, including emotional distress; and pay exemplary or punitive damages.
Compliance Perspective
Issue
The OSH Act mandates that employers must provide their employees with a workplace free from recognized hazards that could cause death or serious physical harm. Additionally, employers are required to comply with the occupational safety and health standards established under this Act. The OSH Act also contains whistleblower (anti-retaliation) provisions that generally provide that employers may not discharge or otherwise retaliate against an employee because the employee has filed a complaint or exercised any other rights provided to employees by the statute.
Discussion Points
- Review your policies and procedures on nonretaliation and the prohibited firing of or other negative actions against any employee in retaliation for reporting health and safety concerns.
- Ensure that staff are aware of your nonretaliation policies and the steps they should take if they have health or safety concerns, including the use of the anonymous Hotline. Document that these trainings occurred, and file each signed document in the employee’s education file.
- Periodically audit staff understanding to ensure that they are aware of your policy of nonretaliation in the workplace and how to report any concerns. Review reports received to ensure they were addressed properly in a timely manner.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
