Philadelphia is ensuring employers err on the facet of warning in terms of COVID-19. As of June 26, 2020, Philadelphia-based workers have extra protections from retaliation by means of the unanimously handed the Important Staff Safety Act (“EWPA” or “Act”), which prohibits retaliation towards any worker who speaks out about, or refuses to work as a result of, the employer’s non-compliance with Pennsylvania and Philadelphia COVID-19 public well being orders. The EWPA applies to all Philadelphia employers, no matter their measurement.
The EWPA’s anti-retaliation safety is two-pronged. First, employers might not take an hostile employment motion (e.g., terminate, scale back pay, adversely change hours, or refuse to make use of) towards an worker who makes a “protected disclosure.” A protected disclosure is “a very good religion communication” that reveals info which will show a violation of a state or metropolis COVID-19 public well being order. Whereas the Act doesn’t specify to whom a protected disclosure should be directed, employers ought to assume that the statue will likely be broadly construed to cowl any employer-known disclosure of a violation of a state or metropolis COVID-19 public well being order. Nonetheless, a communication just isn’t protected except it discloses “or demonstrates an intention to reveal” info that pertains to a violation of a COVID-19 public well being order that would “considerably threaten the well being or security of workers or the general public” and that communication was “made for the aim of remedying such violation.”
Second, employers are prohibited from taking an hostile employment motion towards an worker who: (1) refuses to work in situations they moderately imagine violate state or metropolis COVID-19 public well being orders; and (2) has notified the employer of that unsafe situation. Staff might not refuse to work, nonetheless, if the employer affords a “cheap various work task that doesn’t expose the worker to the unsafe situation,” or the employer proves its compliance with all relevant public well being orders.
The EWPA is employee-friendly. Even workers who “mistakenly” allege noncompliance with a COVID-19 public well being order get pleasure from safety, as long as the allegation was cheap and made in good religion. As well as, the EWPA establishes a “rebuttable presumption of retaliation” towards an employer if it takes an hostile motion towards an worker inside 90 days of the worker’s train of rights thereunder.
Staff have two mechanisms for imposing their rights below the Act. First, they will file a criticism with the Philadelphia Division of Labor (“DOL”) utilizing the identical procedures that at present exist for violations of the wage theft regulation. If there’s a violation, the DOL is permitted to hunt penalties and fines, in addition to order reinstatement and full restitution to the worker for misplaced wages and advantages.
Second, the EWPA offers workers with a personal proper of motion. As soon as administrative treatments are exhausted, workers might sue employers in court docket for violating the EWPA. Along with searching for civil penalties on behalf of the Metropolis for every day a violation happens, profitable workers could also be awarded reinstatement, again pay, and different compensatory damages, and get better lawyer’s charges and prices. Submitting a civil motion below the EWPA won’t preclude the worker from submitting a wrongful termination, discrimination, or different employment regulation declare based mostly on the identical information below in any other case relevant regulation.
What Employers Ought to Do Now
Philadelphia employers ought to take speedy steps to make sure that their workplaces adjust to all Pennsylvania and Philadelphia COVID-19 public well being orders. Employers ought to put mechanisms in place to analyze all worker issues raised relating to about office security, and punctiliously doc that investigation course of. As well as, supervisors and Human Assets workers needs to be knowledgeable of the protections provided by the EWPA and be reminded to rigorously take into account any deliberate hostile motion towards an worker who has raised a well being or security concern. If a deliberate hostile motion may very well be thought-about retaliatory, employers ought to seek the advice of with authorized counsel earlier than taking such motion.
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