Unsafe Workplace Claims - Consumer Justice Foundation

Unsafe Workplace Claims

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Agricultural workers, warehouse workers, delivery drivers and other essential workers may be exposed to hazardous working conditions that put their health and safety at risk during the COVID-19 pandemic.

Employers in the United States are required by law to maintain a safe environment for their employees to work in and that includes providing proper protections against pathogens and infectious diseases, like COVID-19. If you believe that you are at risk for COVID-19 due to unsafe or unsanitary conditions at work and you aren’t sure how to address the problem, or if you reported a workplace safety violation and your employer fired you or took other retaliatory action against you, contact our consumer advocates at the Consumer Justice Foundation today. We are committed to protecting the rights of workers nationwide during the COVID-19 public health crisis and we can help put you in touch with an experienced employment law attorney who can help you determine the best course of action based on your specific circumstances.  

The Occupational Safety and Health Act

The U.S. Occupational Safety and Health Administration (OSHA) is a federal agency within the Department of Labor, established for the purpose of protecting employees in the United States from occupational exposure to safety hazards, including pathogens and infectious diseases. OSHA is the agency responsible for administering the Occupational Safety and Health (OSH) Act, which is a federal law intended to promote health and safety in workplaces across the U.S. The OSH Act has many different components, but the general idea behind the law is that employers must take steps to keep the workplace safe and free of recognized hazards that could cause death or serious injury or illness to their employees. Keep in mind that the OSH Act is a federal law and some states have their own occupational health and safety laws. However, these state plans are monitored by OSHA and must be at least as effective as the federal law in protecting workers and preventing on-the-job injuries, illnesses and deaths.

The Threat of COVID-19 in the Workplace

During the COVID-19 pandemic, the risk of contracting the novel coronavirus and becoming severely ill is a new and very real risk that employers are required to take into consideration when identifying potential safety hazards, ensuring that working conditions meet federal standards and providing employees with the appropriate personal protective equipment (PPE) so they can do their jobs safely. Given the fact that COVID-19 is a new disease that has never existed before in the American workplace, it presents a unique challenge for employees and employers alike.

In response to the COVID-19 pandemic, OSHA and the U.S. Centers for Disease Control and Prevention (CDC) have issued new guidelines on recognizing hazards in the workplace, meeting federal workplace standards and taking steps to minimize the spread of COVID-19. For agricultural workers, warehouse workers, delivery drivers and other workers who continue to report to work during the coronavirus pandemic, having a safe environment to work in is critical to their health and well-being. By referring to coronavirus-specific safety guidelines developed by OSHA and the CDC, you can ensure that your employer is doing everything in his or her power to keep your workplace safe during COVID-19.

Complaints About Unsafe Working Conditions

As an employee, you have certain rights when it comes to unsafe working conditions. If you feel your workplace is unsafe, either due to the risk of COVID-19 or some other safety hazard or threat, you should not hesitate to tell your employer. Under the OSH Act, your employer is prohibited from retaliating against you (i.e. firing you, disciplining you or taking any other negative action against you) for filing a complaint about an unsafe workplace. If your employer ignores your complaint or fails to take action to correct the safety issue, the next step is filing an OSHA complaint. The Occupational Health and Safety Act of 1970 gives you the right to file a complaint about any safety violations or health hazards that exist in the workplace. If you are concerned about being discriminated or retaliated against by your employer, which is against the law, you have the option of filing an anonymous complaint.

Whistleblower and Retaliation Claims

Under OSHA’s Whistleblower Protection Program, there are more than 20 federal laws that protect employees from employer retaliation for, among other things, raising or reporting concerns about workplace safety and health issues. If you believe your employer retaliated against you for exercising your rights as an employee by reporting a workplace safety violation or health concern, you may have a whistleblower complaint.

Section 11(c) of the OSH Act

Section 11(c) of the OSH Act is designed to protect workers who file complaints regarding unsafe working conditions. It prohibits employers from retaliating against employees who raise health and safety concerns and report work-related injuries and illnesses. If you reported an unsafe working condition and your employer retaliated against you in any way, you may have a claim under Section 11(c) of the OSH Act.

The Surface Transportation Assistance Act (STAA) of 1983 – Section 405 (49 U.S.C. §31105)

The Surface Transportation Assistance Act (STAA) of 1983 – Section 405 (49 U.S.C. §31105) provides protections for drivers, freight handlers, mechanics and certain other workers in the surface transportation industry from discrimination or retaliation for complaining about violations of vehicle safety requirements or for refusing to operate a vehicle due to safety concerns or in situations where operation of the vehicle would violate safety regulations. If your employer discriminates or retaliates against you for your involvement in these protected activities, you may have a claim under Section 405.

Workers’ Right to Refuse Unsafe Work

The ongoing coronavirus pandemic is disrupting nearly every aspect of American life, especially in the workplace. As the virus continues to spread across the country, nonessential businesses have been ordered to close, millions of people have lost their jobs and those still working are left wondering what rights they have if their working conditions become unsafe. As an employee, one of your most important rights during COVID-19 is the right to refuse to work if you reasonably believe that an immediate and serious safety threat exists in the workplace, such as the threat of contracting COVID-19. In its ongoing effort to help employers “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm,” OSHA has published a series of articles detailing COVID-19 guidance for specific industries, such as manufacturing, construction, retail, package delivery and food service, to better prepare employers to take the steps necessary to reduce employee exposure risk. If your work environment or job duties put you in imminent danger of contracting coronavirus and your employer has failed to comply with his or her responsibilities under federal law in correcting workplace hazards and providing you with the proper PPE, you may have a legal right to refuse to work.

Lawsuits Over Unsafe Working Conditions During COVID-19

Under workers’ compensation laws, most employees are barred from suing their employer in court for an injury or illness they sustain at work. With workers’ compensation insurance, you don’t have to prove that your employer was at fault to collect benefits for medical bills and a portion of your lost wages. However, you also generally aren’t allowed to file a lawsuit against your employer. That being said, there are certain situations in which a worker can sue his or her employer outside of workers’ compensation for a workplace injury or illness. An example would be if your employer showed a complete disregard for your safety or if your injury or illness occurred because of your employer’s serious and willful misconduct or intentional act. Or, if your injury or illness was caused by a third party, i.e. the manufacturer of defective PPE, you may be able to sue that party in court. If this is the case, you can hire an attorney to pursue financial compensation for your medical expenses, lost wages, loss of future earning capacity, pain and suffering and other related damages.

Personal Protective Equipment

Federal and state laws require employers to maintain a safe and healthy work environment free from known hazards and that includes providing employees with PPE to minimize their exposure to workplace dangers and infectious agents, such as COVID-19. In one federal lawsuit filed in April 2020 against Smithfield Foods, one of the largest meat producers in the United States, a plant worker identified as Jane Doe and a plant worker advocacy group accused the company of various health and safety violations amid COVID-19, including failing to provide workers with sufficient PPE, forcing workers to work shoulder to shoulder despite social distancing recommendations, failing to give workers sufficient opportunities to wash their hands to minimize the spread of COVID-19, discouraging workers from taking sick leave and failing to implement a plan for COVID-19 testing.

What should you do? If your employer has failed to provide a safe work environment during COVID-19, you should contact a lawyer as soon as possible to discuss filing an unsafe workplace claim.

All employees have the right to a safe work environment. Unfortunately, based on reports from workers across the country, many employees believe that their employers aren’t doing enough to protect them from the threat of COVID-19. If you believe unsafe conditions exist in your workplace, your first step should be to bring your concerns to your employer’s attention. If your employer refuses to do what is necessary to make the workplace safe for you and your co-workers, you can file a complaint with OSHA or, in certain cases, you may have grounds to file a lawsuit against your employer. If you think you have an unsafe workplace claim but you aren’t certain how to proceed, you can benefit from speaking to an experienced employment law attorney who can evaluate your claim, explain your rights as an employee and walk you through the claims process. Contact our consumer advocates at the Consumer Justice Foundation today for help.

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