September 23, 2021

Volume XI, Number 266

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COVID-19 Whistleblowers Have New Rights in Philadelphia

Philadelphia recently enacted a new city ordinance protecting whistleblowers who report unsafe workplace conditions related to COVID-19.

The Essential Workers Protection Act (EWPA), signed by Mayor Jim Kenney on June 26, 2020, prohibits employers from retaliating against workers for speaking out about unsafe conditions caused by noncompliance with city and state emergency health orders and regulations. The act appears as a new chapter in Title 9 of the Philadelphia Code, entitled “Chapter 9-5000. Employee Protections in Connection with COVID-19 Emergency Health Order.” Under the new law, all employers in the city of Philadelphia must comply with all applicable requirements of public health orders addressing COVID-19 safe workplace practices, and may not retaliate against employees who (1) refuse to work in unsafe conditions or (2) make a protected disclosure under the act.

Refusing to Work in Unsafe Conditions

Philadelphia employers may not take adverse action against any employee who “refuse[s] to work in unsafe conditions if the employee reasonably believes that the employer is operating in violation of a COVID-19 public health order in a manner that has created the unsafe condition.” (Note: Both the city of Philadelphia and Commonwealth of Pennsylvania have issued public health orders associated with COVID-19.) The employee also must notify the employer of the unsafe condition in order to claim this protection.

The employee may not refuse to work, however, if (1) the employer “provides a reasonable alternative work assignment that does not expose the employee to the unsafe condition,” or (2) “upon inspection by the Philadelphia or Pennsylvania Department of Health the [employer] proves it is compliant with all public health orders addressing safe workplace practices.”

Making a Protected Disclosure Under the EWPA

Philadelphia employers also may not take adverse employment action against any employee for making a “protected disclosure.”

The EWPA defines a protected disclosure as: “A good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence a violation of a COVID-19 public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation.”

In short, Philadelphia employers may not retaliate against employees who report that the business is operating in a manner contrary to local or state COVID-19 public health orders.

Philadelphia employers may want to take particular care in handling employee workplace concerns that may fall under the EWPA. The act creates a private right of action for employees and a rebuttable presumption of retaliation if an employee who engages in protected conduct suffers an adverse employment action, such as suspension or termination, within 90 days of such conduct. This presumption also applies to seasonal workers who work fewer than 90 days if the employer “fails to rehire [such workers] at the next opportunity for work in the same position.” A prevailing employee may be awarded reinstatement, back pay, compensatory damages, and attorneys’ fees and costs. The employee may also “seek civil penalties on behalf of the City for each day in which a violation occurs.”

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 205
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About this Author

Taylor E. Gillan Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart Pittsburgh, PA
Associate

Taylor Gillan counsels employers in all areas of federal and state employment law, including compliance with Title VII, the ADEA, the ADA, the FMLA, the FLSA, and various state laws and common law theories. She also defends employers in federal and state court, as well as before administrative agencies tasked with enforcing employment laws. Taylor has experience with claims brought under the FCRA and the Pennsylvania Whistleblower Law.

She brings her past experience as an employee-side employment attorney to provide employers with unique perspective and results-oriented...

412-315-6043
Jessica M. Bocchinfuso employment lawyer Ogletree Deakins
Associate

Jessica M. Bocchinfuso is an Associate in the firm’s Philadelphia office.  Ms. Bocchinfuso represents employers in a wide range of labor and employment matters, including litigation involving allegations of discrimination, harassment, retaliation, and wage and hour issues in state and federal court, arbitrations, and before administrative agencies.

Ms. Bocchinfuso has significant experience defending employers in claims brought under Title VII, Section 1981, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the...

215 995 2835
John Artz, Ogletree Deakins Law Firm, Employment Law Attorney
Shareholder

For almost 35 years, John Artz has been helping employers with personnel and policy issues and government regulation.  He concentrates his practice in employment and labor law, with a special emphasis on workplace safety and health (OSHA, safety, workplace violence), along with both counseling and litigation regarding gender, disability and racial discrimination (and workplace harassment), terminations, wrongful discharge, wage and hour, and workers' and unemployment compensation.  He regularly advises employers with respect to applications and hiring, human relations...

412-394-3342
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