What Employees Who Report Unsafe New York Workplaces During the COVID-19 Crisis Need to Know

By Tammy Marzigliano and Kendall Onyendu

As the novel coronavirus spreads throughout the U.S., New York and many other states and cities have ordered non-essential businesses to close. However, what constitutes an “essential business” has shifted over the course of the pandemic, as has how the order will be enforced.

Governor Andrew Cuomo’s office issued detailed, updated lists of businesses that qualify as “essential,” along with warnings that the state will enforce the “New York State on PAUSE” executive order through monitoring, civil fines, and mandatory closures for businesses that do not comply. In New York City, the mayor’s office announced that the New York Police Department would assist in enforcing business closures and social distancing orders.

My business is essential, but my employer is not taking any precautions to protect workers. What can I do?

Taking appropriate precautions to protect workers is more important than ever as COVID-19 threatens all of us. The PAUSE Order mandates that “businesses and entities that provide other essential services must implement rules that help facilitate social distancing of at least six feet.”

Although they may be allowed to continue functioning, some essential businesses are required to limit their operations and reduce their workforces to the bare minimum of staff that serve essential functions. Safety issues for businesses that remain open may include the lack of adequate personal protective equipment (PPE) for workers, cutting corners on safety measures due to less frequent inspections or relaxed regulations, not enforcing cleanliness recommendations and preventative measures advocated by the Center for Disease Control (CDC), and other hazardous business practices.

Workers who report unsafe workplace conditions are protected from whistleblower retaliation by the Occupational Safety and Health Act, so if your employer takes an adverse employment action (such as a demotion or termination) against you, you may be able to recover damages including back pay and reinstatement. If you observe unsafe conditions in your workplace or believe your employer is not providing you with PPE and resources to protect yourself adequately, you can report your concerns to the appropriate New York regional branch of the Occupational Safety and Health Administration through their Online Whistleblower Complaint form.

Further, under New York Labor Law § 740 employees are protected from being retaliated against by an employer for disclosing to a supervisor unlawful conduct that creates a substantial and specific danger to public health or safety. The conduct they report must be an actual violation of a law. New York Labor Law § 741 specifically targets and protects healthcare workers from retaliation when they disclose to a supervisor conduct that the employee reasonably believes creates an improper quality of patient care, or if the employee refuses to participate in that conduct. Under this provision, where the improper quality of patient care presents an imminent threat either to the public health and safety or to the patient, and the employee reasonably believes that reporting the violation to their supervisor would not correct the problem, employees are protected from retaliation if they report to a public body first (i.e. an administrative agency or law enforcement agency, etc.).

I am an employee of a non-essential business that refuses to close its doors. My boss told me that if I don’t come to work, I will be fired. What can I do?

If you believe your employer is violating the PAUSE Order, either by requiring you to work at a non-essential business or in a non-essential role, you can file a complaint directly with the New York State Department of Labor. If you work for a non-essential business, your employer cannot force you to go to the worksite or otherwise threaten you to work at a place other than your home.

Although New York disqualifies claimants from collecting unemployment benefits if they voluntarily leave their job without good cause, refusing to go to work at a non-essential business may meet that threshold, although claimants will need to be clear that they are refusing to work as a direct result of COVID-19. You may also be entitled to sick leave, paid family leave, or other disability benefits under New York state law.

I filed a complaint against my employer for violating the closure order and was then terminated. Do I have a case against my former employer?

If you file a complaint with the Department of Labor, it is illegal for an employer to discharge, penalize, or in any manner discriminate or retaliate against an employee for initiating a complaint or participating in a Labor Department investigation of an employer’s possible workplace violations.

If an employee brings a retaliation complaint to the New York State Department of Labor and the agency determines that it is valid, it can levy a fine on the employer ranging from $1,000 to $20,000 and order payment of lost compensation and liquidated damages to the employee. A whistleblower who suffered retaliation may also bring a lawsuit against the employer instead of or in addition to filing a complaint with the Labor Department. If successful, the employee might recover lost compensation, damages of up to $20,000, reasonable attorney’s fees and costs, and restoration to their former position with full seniority.

Should I consult with an attorney?

Although you don’t need legal counsel to file a complaint with the New York State Department of Labor for current violations or past retaliation, it may be advisable to consult a lawyer before you take action as there are nuances within the law. An attorney with experience in whistleblower retaliation cases can help you organize and properly file your complaint and pursue any relief to which you may be entitled under state and federal law.