Since the beginning of the COVID-19 pandemic approximately two years ago there has been a steep increase in the number of whistleblower lawsuits filed against healthcare employers.
With the significant rise in litigation, it has become more important than ever for employers in this field to make sure they are properly navigating COVID-related issues and that they are navigating their personnel decisions in compliance with the law.
One of the primary principles of the Occupational Health and Safety Act is that employers are responsible for creating safe and healthy work conditions for their employees. This has been a big issue throughout the pandemic for all employers, especially healthcare companies where exposure is more likely.
In addition, under section 11(C) of the Act, employers are prohibited from retaliating against employees who report safety deficiencies. In the time of COVID, this means employees have the right to speak up about insufficient pandemic safety protocols and not fear losing their job over their reports.
There has been a significant increase in section 11(c) litigation. In response to this increase, OSHA amended 29 CFR 1977.6(b) governing violations of that anti-retaliation provision. OSHA changed the rule that outlines the causal connection between the protected whistleblowing activity of an employee and adverse actions that would qualify as violations of section 11(c). Under the revision, OSHA cases now use the “but-for” causation consistent with what has been analyzed in a variety of Supreme Court cases.
The last two years have seen a lot of analysis of existing whistleblower protection law under the Occupational Safety and Health Act, as well as increased levels of protection for whistleblowers and employers alike. It is critical for companies to have robust compliance programs in place.
For more information about COVID-19 whistleblowing in healthcare environments, contact an experienced whistleblower lawyer at Kardell Law Group.