Employers have had several months to learn and understand COVID-19 guidelines and protocols. National and local standards make it clear that masks are critical to workplace safety. Compliance isn’t always simple or easy, but it’s an employer’s duty to make sure a work environment is safe.
Remote workers establish their own safety bubbles. If you work in a shared space, you depend on your employer to set and implement the appropriate safety protocols. Problems arise when an employer’s priorities don’t sync with public health guidelines. If your employer refuses to enforce mask-wearing protocols, you have a right to voice your concerns. If that means making a formal complaint, you have a legal right to do so.
Mask Mandates vs Safety Standards
Masks and cloth face coverings are a COVID-19 safety standard, but they’re also a source of controversy. The Centers for Disease Control and Prevention recommends face coverings. They have determined that masks and cloth coverings reduce virus-spread in the workplace and in other public environments. Despite the protective benefits, many states don’t have a mask or face-covering mandate, although some cities and counties do.
In states like Wisconsin, protesters have made masks a political issue. In a recent ruling, the Wisconsin Supreme Court effectively blocked the Department of Health Services from issuing COVID-19 health directives. The state legislature must approve future statewide Coronavirus-related health rules. Fortunately, these restrictions don’t interfere with your personal right to insist on masks for a safer workplace.
As wearing a mask or face-covering is a known and accepted way to prevent workplace infections, it’s a safety issue regardless of a state’s laws or mandates. As with other safety protocols, you have a right to complain if your employer isn’t making the workplace as safe as it could be.
Your Rights as an Employee
If your safety concerns arise out of your employer’s workplace operations, you must work with the safety agency that governs workplaces in your state. Except under rare circumstances, you likely have no right to sue your employer. Your attorney can evaluate your circumstances to determine if additional state or local statutes apply.
Nationally, the Occupational Safety and Health Administration sets federal workplace safety standards. Compliance varies depending on your state’s OSHA affiliation. Twenty-two states run their own OSHA-approved State Plans. Six states operate under OSHA-approved State Plans that cover state and federal workers only. OSHA monitors these State Plans, but they sometimes establish additional guidelines, safety protocols, and compliance standards.
OSHA runs all workplace safety agencies in Wisconsin, Ohio, Texas, and 25 additional states and territories. The standards align with federal statutes and legal rights granted under federal labor standards. If you work in Wisconsin or any of the other OSHA-affiliated states, the agency provides the sole workplace safety complaint and enforcement system. When you have a concern about safety, instead of filing a lawsuit, you must file a complaint with OSHA.
Filing an OSHA Complaint
COVID-19 is a proven threat to workplace safety. Over the past few months, OSHA and the CDC have published guidance resources to help employers’ establish safer work environments. As an employee, your concerns about safety should be sincere and reasonable; but it’s not your job to determine if your employer is compliant with these standards.
Safety issues arise out of the day-to-day COVID-19 exposure risks you encounter in your workplace. These vary depending on your job duties and the protective equipment you use. If you feel unsafe, you don’t need your employer’s validation. Federal regulations entitle you to a safe workplace. They also give you the right to file a confidential complaint through OSHA. If you file a complaint, an agency investigator will inspect your workplace and take action based on their findings. OSHA may require your employer to pay a civil penalty.
Before filing a complaint, OSHA recommends that you take the following steps:
- Discuss the safety issues with your employer.
- Ask the employer to eliminate the problem.
- If your employer fails to eliminate the problem, file an OSHA complaint.
- If you feel in good faith that there’s an imminent danger, under certain circumstances, you may have a legal right to refuse to work.
Filing a Whistleblower Complaint
If your employer retaliates against you because you filed an OSHA complaint, you may have a right to file a Whistleblower complaint under Section 11(c) of the Occupational Safety & Health Act. Employer retaliation takes many forms. Your employer may simply fire you. They might also punish you by demoting you, restricting your overtime work, reducing your pay, denying promotions, and other adverse actions.
If you file a Whistleblower complaint and the evidence supports your allegations, the Secretary of Labor sometimes recommends litigation in U.S. District Court. If your case is successful, you may qualify for financial relief that includes:
- Job reinstatement
- Back pay with interest
- Damages for emotional distress
- Punitive damages
Whistleblower Deadlines and Requirements
As of July 2020, 2,341 workers nationally have filed COVID-19 Whistleblower complaints. If you believe that your employer has targeted you for retaliation, you should consult with an attorney immediately. OSHA simplifies the submission process as much as possible. You may file an 11 (c) Whistleblower complaint online or by phone, but you must file within 30 days of a retaliatory event. You must also produce evidence to prove your allegations and you must comply with stringent deadlines.
Your attorney can also advise you if you have Whistleblower recovery rights under state and local statutes. Many states have employment-at-will policies. They can fire you when they choose and for whatever reason they choose. Your attorney can review your rights and proceed accordingly.
Do You Need a Lawyer to Help You Resolve Workplace Mask Safety Issues?
No one knows when COVID-19 workplace safety issues will go away. If you have personal and legal concerns, you should consult with an attorney as soon as possible. As we’ve witnessed over the past few months, Coronavirus-related requirements, statutes, and responses are in constant flux. An attorney can review your situation and help you find the most efficient way to address your safety concerns.
Your initial legal consultation is complimentary. You present your concerns and learn your available legal options. You don’t have to commit to pursuing a sensitive action against your employer; the final decision is up to you.