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Philadelphia Becomes First City in the Nation to Affirmatively Protect COVID-19 Whistleblowers

June 29, 2020

MICHAEL J. DAVEY, ESQUIRE
Employment Law Department Eckell Sparks Law Firm
mdavey@eckellsparks.com
6105653700

As of Friday, June 26, 2020, it is now generally illegal in Philadelphia for an employer to discipline or fire an employee because he/she: (1) refuses to work in unsafe COVID-19 conditions  believed  to  be  created  by  the  employer;  or  (2) makes a complaint about an employer’s violation of a COVID-19 public health order. The full text of Philadelphia’s new “Employee    Protections    in   Connection    with    COVID-19 Emergency  Health  Order”  Ordinance,  can  be  found  here: https://phila.legistar.com/View.ashx?M=F&ID=8638044&G  UID=7775F8F9-F7BE-4E81-96F0-12D5764FC96F

The first category of protection created by this Ordinance— which I will refer to as the “unsafe conditions” clause—gives employees a right to refuse to work in potentially harmful COVID-19 conditions without fear of retaliation or termination. An employee is only protected by the unsafe conditions clause if:

(1)  he/she has a reasonable belief that the employer is operating in violation of a COVID-19 public health order issued by either the Pennsylvania Department of Health or the City of Philadelphia;

(2)   the employer’s operation in violation of the COVID-19   public   health   order   has   created   the   unsafe condition the employee fears; and

(3) he/she has notified the employer of the unsafe condition.

But, an employee cannot refuse to work if: the employer (presumably after being notified by the employee of an alleged unsafe condition) provides “a reasonable alternative work assignment that does not expose the employee to the unsafe condition”; or, after inspection by the Philadelphia or Pennsylvania Departments of Health, the employer is found to be complying with all safe workplace public health orders. In other words, if an employee complains to his/her employer about an alleged COVID-19 workplace violation, the employee cannot refuse to work under the Ordinance if the employer (1) offers to correct or modify the employee’s job to remove the concern; (2) is certified to be in compliance by the Pennsylvania or Philadelphia Health Department.

The second category of protection created by this Ordinance— which I will refer to as the “whistleblower” clause—allows employees   to   freely   make   complaints about actual or perceived COVID-19 workplace violations, without worrying about being disciplined or losing their jobs. In order to fall under the whistleblower clause, an employee must show that:

(1)  he/she discloses or demonstrates an intent to disclose information that his/her employer may be violating a COVID-19 public health order issued by the Philadelphia or Pennsylvania Departments of Health;

(2) the employer’s alleged violation may significantly threaten the health or safety of the employees, or the public; and

(3)  the disclosure (or intent to disclose) was made in good faith for the purposes of remedying the actual or perceived violation.

Under either the unsafe conditions or the whistleblower clauses, the actions or disclosures of the employee do not even need to be factually correct in order to be protected. So long as a complaint or a disclosure is both reasonable and made in good faith—even if ultimately proven wrong—it still counts as protected activity under the Ordinance.

Finally, if an employer takes any disciplinary or adverse action against an employee within 90 days of a complaint or disclosure made under the unsafe conditions or the whistleblower clauses, the Ordinance presumes that the employer has unlawfully retaliated against that employee. The Ordinance creates a private right of action for all affected employees, which allows damages in the form of reinstatement, back pay, other compensatory damages, and civil penalties, along with reasonable attorneys’ fees and costs.