Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 26, 2020, Philadelphia became the first city in the United States to enact legislation specifically protecting workers who make complaints about workplace safety due to COVID-19.
The Essential Workers Protection Act (EWPA), or the Employee Protections in Connection with COVID-19 Emergency Health Order, protects from retaliation employees who (1) disclose information related to employer non-compliance with COVID-19 public-health orders or (2) refuse to work in unsafe conditions related to COVID-19. The EWPA also requires all employers to comply with any COVID-19 orders issued by the Pennsylvania or Philadelphia Departments of Health.
The EWPA broadly defines “employer” as “any person, including a corporate officer or executive, who directly or indirectly or through an agent or any other person . . . employs or exercises control over the wages, hours or working conditions of any [e]mployee.” All employers in Philadelphia, regardless of size, are covered by the EWPA.
The EWPA’s protections for employees are two-fold. First, the EWPA prohibits employers from taking an adverse employment action against an employee for making a “protected disclosure.” Under the EWPA, a protected disclosure is a “good faith communication” that either “discloses or demonstrates an intention to disclose information that” could show a violation of a COVID-19 public health order. For a disclosure to be protected, it must
- relate to a violation of a COVID-19 public health order that could “significantly threaten the health or safety of employees or the public”; and
- be made with the intent to remedy the violation.
Second, the EWPA prohibits employers from taking an adverse employment action against employees who refuse to work in “unsafe conditions.” Employees refusing to work must reasonably believe that the employer is violating a COVID-19 public-health order and the violation alleged must create the unsafe condition. Additionally, employees must notify the employer of the unsafe condition.
The legislation contains some limiting principles. The EWPA does not protect employees who refuse to work if the employer has provided “a reasonable alternative work assignment that does not expose the employee to the unsafe condition.” Similarly, the statute does not aid employees who refuse to work if the employer proves compliance with all COVID-19 public health orders to the Philadelphia or Pennsylvania Departments of Health.
Still, the statute’s coverage is broad. Employees need not be correct in their assertion that an employer is violating a COVID-19 public health order to be protected. The EWPA protects employees “who mistakenly and in good faith, allege noncompliance” with public health orders. Further, the EWPA creates a presumption of retaliation for any employer that takes an adverse employment action within 90 days of the protected disclosure or refusal to work. This presumption can only be rebutted if the employer can present “evidence that the adverse employment action was taken for a permissible purpose.”
Adverse Employment Actions
Under the EWPA, an adverse employment action is any “reduction in pay, atypical adverse change in working hours, termination, refusal to employ, harassment, or threats pertaining to an individual’s perceived immigration status.”
Enforcement and Penalties
Employees may submit complaints to the Department of Labor (“the Department”). The Department is empowered to seek penalties and fines for EWPA violations. It can also order that employees be reinstated and that employers pay lost wages and benefits.
Private Right of Action
Employees may sue their employers for violating the EWPA after they exhaust their administrative remedies with the Department. Successful plaintiffs may be entitled to reinstatement, backpay, other compensatory damages, and attorneys’ fees.
Takeaways for Employers
Employers must review their safety practices to make sure they are complying with all COVID-19 public-health orders issued by the Pennsylvania or Philadelphia Departments of Health, which are issued often and revised frequently. Compliance with these orders is the first step to preventing complaints under the EWPA. Employers should also create policies on how to respond to COVID-19-related complaints or refusals to work. Finally, before carrying out any adverse action against an employee who has arguably engaged in protected conduct, employers should consult with counsel.