Avoiding Retaliation Pitfalls During COVID-19

By Anthony G. (“Tony”) Stergio and Andrew J. Clark

As a wide range of Texas businesses begin to reopen amid the COVID-19 pandemic, employers must be mindful of numerous legal obligations and restrictions, including laws which prohibit retaliation against employees who exercise certain legal rights.  While federal, state, and local laws continue to evolve, the following are potential legal pitfalls employers should be aware of:  
Safety-Related Reports and Complaints

As the COVID-19 pandemic continues, OSHA has issued specific guidelines designed to keep employees safe.  While these guidelines do not have the force of OSHA regulations, OSHA can use the General Duty Clause to cite employers for failure to furnish "employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm."  Additionally, OSHA can use its Personal Protective Equipment standards, which require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.
An employee that reports a work-related injury or illness or safety violation is afforded protection from retaliation. If an employee is retaliated against for reporting a work-related injury or illness, OSHA is able to cite an employer for retaliation. A report of retaliation could also lead to both an OSHA safety inspection and a whistleblower investigation.  29 C.F.R.  1904.35(b)(1)(iv).  If an employee is retaliated against for reporting a safety violation internally or to OSHA, OSHA will investigate the retaliation allegations and may decide to litigate the case in U.S. District Court under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c).  In such a lawsuit, OSHA could seek reinstatement, back pay with interest, compensation for employee expenses, and punitive damages.

Leaves of Absence
On April 1, 2020, the Families First Coronavirus Response Act (FFCRA) took effect. Businesses with under 500 employees must provide paid leave to employees who miss work because of certain COVID-19 related reasons. A chart briefly summarizing employers’ obligations can be found here.
Employers are prohibited from retaliating against an employee for requesting or using FFCRA leave. An employee may file a retaliation lawsuit directly against the employer for back pay, attorneys’ fees, and in the case of willful violations, liquidated damages.  The Department of Labor’s Wage and Hour Division may also investigate written complaints and pursue relief on behalf of group employees alleging FFCRA discrimination.
Employers must continue to abide by the Americans with Disabilities Act during the pandemic.  The ADA directly impacts employees with underlying medical conditions which put them at increased risk of severe outcomes in the event of a COVID-19 infection.  Employers must be prepared to deal with employees who want to return to work, notwithstanding their underlying condition, as well as employees who do not want to return to the office, despite its reopening.  Employers should review the guidance the EEOC has issued regarding COVID-19 and returns to work. 
In situations where an employee requests either a return to work or the continuation of telework, employers must engage in an interactive process to determine whether the employee’s requests can be accommodated. Where an individual has a medical condition which places the individual at higher risk for severe illness if they get COVID-19, accommodations may include additional or enhanced protective gear, or measures beyond what the employer may generally provide to returning employees.  Other possible accommodations may be elimination or substitution of particular “marginal” functions, temporary modification of work schedules, or moving the location of where one performs work. (Is the continuation of teleworking not an option?)
Employers are prohibited from retaliating against an employee for requesting an accommodation under the ADA.  An employee may file a retaliation charge with the EEOC, who would then investigate the claim. After the conclusion of the investigation, the EEOC would either initiate suit on its own (which rarely happens) or issue a right-to-sue letter to the employee.  Once the employee receives a right to sue letter, the employee could sue the employer for retaliation and pursue back pay, attorneys’ fees, and front pay or reinstatement.
Until such time a vaccine is widely distributed, COVID-19 will most likely continue to be an important topic for companies and human resources teams across the globe. In fact, we foresee that as more is learned about the virus, more clarifications, orders, guidelines, etc., will be crafted and pushed out through the various agencies.  Therefore, companies will need to continue to monitor human resources laws relating to COVID-19. 

For More Information:


Anthony G. “Tony” Stergio
Andrews Myers | Attorneys at Law
TEL: 713-850-4214
EMAIL: astergio@andrewsmyers.com
WEB: www.andrewsmyers.com