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Prevent COVID-19 Related Retaliation Claims Before Your Business is the Target of an OSHA Inspection

Retaliation is the most frequently alleged claim in recent tracking of COVID-19-related litigation.[1] This is consistent with the fact that retaliation continues to be the most cited EEOC claim.[2] In part, retaliation claims are so pervasive because they’re simple to understand. It’s hard to imagine an adult that was never the victim of retaliation and/or the perpetrator of a retaliatory act at some point in their life. A brother tattles on his sister for not wearing her bicycle helmet. After she’s grounded from riding her bike, the sister retaliates by humiliating her brother in front of his friends. When people are criticized for doing something wrong, many get defensive and want to respond in kind, especially if the criticism had repercussions. 

In the employment context, retaliation occurs when an employer takes a materially adverse action against an employee that engaged in protected activity, such as raising a concern about workplace safety or reporting a suspected violation of law. Another form of retaliation occurs when an employer’s adverse action could discourage reasonable employees from reporting an injury, illness or safety concern. What constitutes an adverse action may not be obvious. For instance, inconsistent discipline, mocking, reducing hours or pay or reassignment of job duties may, under the circumstances, be considered a retaliatory adverse action. Employers that lack robust anti-retaliation policies and training leave businesses exposed to traditional retaliation claims and to retaliation claims stemming from health and safety compliance related to COVID-19.

In the present employment context, as many workers return to the workplace for the first time in over a year, management is responsible for setting the tone of how COVID-19 safety compliance fits into the culture. For essential workers that have been working throughout the pandemic, management is responsible for how the company addresses the new paradigm where everyone who wants to be vaccinated can get vaccinated. Management also must navigate how vaccinated and unvaccinated employees co-exist (if that is even an option) and how evolving CDC guidance on mask wearing is implemented within their organizations.  

Is management begrudgingly compliant and view required safety protocols as a nuisance or is pandemic safety seamlessly integrated with a pre-existing culture of compliance? Does management openly question the need for any of the required safety protocols or embrace the requirements with respect and a sense of urgency? If any supervisory employees treat the safety requirements with disdain, that attitude is likely to taint management decisions and hamper implementation. For instance, if a supervisor does not always follow social distancing rules or proper mask requirements while working, and is reminded of the rules by a subordinate, any material adverse action that supervisor takes against the subordinate may be viewed as pretext.

The concern for retaliation against employees in relation to COVID-19 worker safety is emphasized in guidance published by federal OSHA on January 29, 2021, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace[3], as well as the national emphasis program (NEP) launched by federal OSHA on March 12, 2021.[4]

Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace highlights the need to educate and train workers on the employer’s COVID-19 policies and procedures using accessible formats and in a language they understand. In addition to ensuring that workers know who to contact with questions or concerns about workplace safety and health, the guidance emphasizes implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19-related hazards.

The NEP, which is effective through March 12, 2022 unless cancelled or extended, is aimed at protecting high-risk workers from COVID-19, focusing on employers that retaliate against workers with safety concerns. According to the press release, per Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick, the program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure. “With more people being vaccinated and the number of infections trending down, we know there is light at the end of the tunnel. But until we are past this pandemic, workers deserve a Labor Department that is looking out for their health,” added Frederick.[5]

OSHA is strongly encouraging (though not requiring) states to implement enforcement programs similar to this NEP. State plans must notify OSHA of their intention to adopt the NEP within 60 days after its issuance. In a related action, OSHA also updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods.

The industries on the targeted lists for inspections include healthcare (i.e. dentists, nursing care, assisted living facilities, ambulance services, general medical and surgical facilities, etc.), food supply (meat/poultry processing plants, food manufacturing, supermarkets, restaurants, general warehouse and storage, etc.), and other industries that employ essential workers who are likely to have the highest frequency of close-contact exposure to the public or co-workers resulting from their on-site work-related duties.[6]

As part of the NEP’s focus of ensuring that workers are protected from retaliation, OSHA is distributing anti-retaliation information during inspections and local outreach efforts. The OSHA Compliance Safety and Health Officers (CSHOs) are directed to inform workers of their right to file a whistleblower complaint to the Whistleblower Protection Program if they experience retaliation for providing assistance to OSHA during an inspection, filing a safety and health complaint with OSHA, reporting a work-related injury or illness, or complaining about COVID-19 exposure or any other workplace hazards to management.

The NEP referral to the Whistleblower Protection Program is consistent with the January 21, 2021 Presidential Executive Order on Protecting Worker Health and Safety.[7] The January 21, 2021 Order directs OSHA to focus its enforcement efforts related to COVID-19 on violations that put the largest number of workers at increased potential exposures to COVID-19, and on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Act.

Local outreach specified in the NEP includes sharing information on the rights of workers and responsibilities of employers for maintaining a workplace free from retaliation. The NEP references the use of The Recommended Practices for Anti-Retaliation Programs as a tool to be used in their outreach efforts.[8] The Recommended Practices for Anti-Retaliation Programs is a set of recommendations developed by OSHA to assist employers with developing or enhancing an existing anti-retaliation program, providing guidance regarding more than 20 whistleblower protection statutes that OSHA enforces, although the basic principles are useful with regard to other anti-retaliation employer obligations.[9]

Proactive Steps Aimed at Preventing COVID-19 Retaliation Claims

  • Educate and train workers on COVID-19 policies and procedures using accessible formats and in a language the employees understand.
  • Show management’s commitment to preventing retaliation by designating a manager with sufficient authority to be responsible and accountable for addressing COVID-19 health and safety concerns, including an anti-retaliation program.
  • Require training for managers and executives to make sure they understand the employer’s and their own legal obligations, as well as the benefits of the anti-retaliation program.
  • Ensure that management training includes issue spotting less obvious material adverse actions that may trigger a retaliation claim.
  • Ensure COVID-19 procedures and anti-retaliation policy compliance are measured in management performance standards and reviews.
  • Establish clear, user-friendly procedures providing employees with multiple ways to report allegations of suspected or actual misconduct and health and safety compliance concerns, including confidential avenues (anonymous reporting through hotlines, email or websites, or through an ombudsman), and protection of confidentiality or anonymity of employees reporting concerns.
  • When compliance concerns are raised, take the concerns seriously, promptly follow through and document efforts, even if they appear to be trivial.
  • When warranted, have an independent investigator promptly and thoroughly respond to the employee and investigate.
  • Distribute frequent reminders that employees are encouraged to report health and safety concerns using the reporting system.
  • Consistently use objective, job-related criteria for decision-making and document the non-retaliatory reasons for adverse employment actions.
  • Continue to treat the whistleblower the same as other employees.
  • Consult Human Resources and employment counsel before taking any adverse employment action with respect to an employee that has engaged in protected activity related to COVID-19 policy compliance, even if the original complaint turned out to be unfounded.

Any efforts to prevent retaliation claims related to COVID-19 will need to be adjusted as the pandemic saga continues to develop. As with every type of workplace retaliation, employers are well advised to train supervisors and management regarding their duties, ensure employees know whom to contact with questions or concerns about workplace safety and health, and enforce then reinforce prohibitions against retaliation for raising workplace safety and health concerns or engaging in other protected activities related to COVID-19 or the next global pandemic.


[1] Littler Mendelson, COVID-19 Labor & Employment Litigation Tracker, April 23, 2021,

[2] U.S. Equal Employment Opportunity Commission Charge Statistics (Charges filed with EEOC) FY 1997 through FY 2020, Accessed April 28, 2021,

[3] United States Department of Labor, Occupational Safety and Health Administration, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, January 29, 2021,

[4] U.S. Department of Labor, OSHA Launches Program to Protect High Risk Workers from Coronavirus, Focuses on Employers that Retaliate Against Workers with Safety Concerns, March 12, 2021,

[5] Id.

[6] U.S. Department of Labor, OSHA Direction, National Emphasis Program Coronavirus Disease 2019, March 12, 2021,

[7] White House, Executive Order Protecting Worker Health and Safety, January 21, 2021,

[8] Occupational Safety and Health Administration, Recommended Practices for Anti-Retaliation Programs, Accessed April 28, 2021,

[9] Id.