What is my risk of contracting COVID-19 at work? Am I receiving adequate protection? Is my workplace safe?
These are questions federal employees are asking themselves as they try and navigate these unprecedented times.
Many federal employees are risking their health and their families’ health to provide critical services to the American people and are concerned that their employers are not providing the personal protective equipment (PPE) necessary to keep them safe.
If you are one of the federal employees in this situation, you might be considering blowing the whistle on your employer. Becoming a whistleblower can be a very effective way to make your workplace safer, but it is important to understand your rights and the potential consequences of blowing the whistle before making the decision to do so.
The following Q&As address how federal employees can use the Whistleblower Protection Act (WPA) to protect themselves when they raise workplace health and safety issues.
Q. Do I have a right to a workplace that will not expose me to COVID-19?
A. The head of each federal agency “must assure safe and healthful working conditions for his/her employees.” 29 C.F.R. § 1960.1(g). OSHA also requires that, “The head of each agency shall furnish to each employee employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 C.F.R. § 1960.8(a). Further, Congress requires that:
The head of each agency shall develop and support organized safety promotion to reduce accidents and injuries among employees of his [or her] agency, encourage safe practices, and eliminate work hazards and health risks.
5 U.S.C. § 7902(d).
Congress requires that federal agencies comply with specific OSHA rules and regulations, but OSHA has not adopted a specific standard to protect workers from infections. Through Section 19 of the OSH Act (29 U.S.C. § 668) and Executive Order 12196 (February 26, 1980), agencies are supposed to include representatives of their staff unions in making their safety programs.
The COVID-19 pandemic is so widely known that it would be untenable for any federal official to say that it is “unrecognized.”
Q. Do I have a right to personal protective equipment (PPE)?
A. Yes. The head of each agency shall acquire, maintain, and require the use of approved personal protective equipment, approved safety equipment, and other devices necessary to protect employees. 29 C.F.R. § 1960.8(d). Federal agencies cannot require employees to pay for their own PPE, and they must pay for an employee’s time put on and take off specialized PPE required for the safe performance of their duties.
Q. What can I do if a federal agency is violating my rights to a safe workplace and PPE?
A. You can engage in any lawful activity to disclose your concerns or participate in proceedings. 5 U.S.C. § 2302(b)(8) and (9). You can report it to your supervisor or to your agency’s “Designated Agency Safety and Health Official.” Every federal agency is required to have one. 29 C.F.R. § 1960.6(a). You can report the violation to the agency Inspector General, the Office of Special Counsel, or to any member of Congress. You can report it to a union, or to the media.
Q. Can I refuse to go to work if I believe it is unsafe?
A. It depends. If going to work would necessarily lead to a violation of a law, rule or regulation, then Congress protects the employee’s decision to refuse to obey an order to come to work. 5 U.S.C. § 2302(b)(9)(D). A judge could eventually decide if the employee had a reasonable belief that coming to work would violate a law, rule or regulation.
Those federal employees refusing to comply with unsafe orders might point to 5 U.S.C. § 7902(d), 29 C.F.R. § 1960.1(g) or C.F.R. § 1960.8(a) as laws that the Agency would be violating if they direct an employee to work under unsafe circumstances. However, this application of 5 U.S.C. § 2302(b)(9)(D) to protect a refusal to work on grounds that it is unsafe is untested.
Outside of the protection for whistleblowers for refusing to violate a law, rule or regulation, judges typically require evidence of a high probability that following an order would result in death or serious physical injury to support an employee’s refusal to work on grounds that it is unsafe.
Q. Am I protected from retaliation?
A. Yes. The Whistleblower Protection Act (WPA) prohibits retaliation for disclosing any violation of a law, rule or regulation. It also protects disclosures of “a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8).
Q. Do I have to tell my boss about my whistleblowing?
A. No, but you may want to.
To prevail in a whistleblower retaliation claim, the employee typically has to show that the decision-maker knows about the protected activity. Whistleblowers who choose to make disclosures anonymously are trying to avoid having their boss find out. If the boss finds out anyway, but will not admit finding out, then the employee may have a difficult time proving that the decision-maker had knowledge of the protected activity. For this reason, some whistleblowers choose to make a “revealment” of their protected activity.
Union organizers used to send employers a letter disclosing their organizing activity. If the boss chose to fire them right away, they would have a strong case of retaliation.
Nowadays, a simple email saying, “Hey, I just wanted to give you a heads up that I reported your violation of our health and safety rights to the Inspector General,” will suffice. Be sure to keep a copy of any revealment email at home.
Q. Do all forms of protected activity have the same protection?
A. No. Judges at the MSPB and the Federal Circuit have denied claims of protected activity by saying that the concern about public health and safety was not “substantial” or “specific.” Today, judges can deny protection by saying that the employee did not have an objectively reasonable belief in the illegality, raised the concern in an unreasonable manner, or raised a violation committed by someone who is not a federal employee.
In the past, judges rejected claims when whistleblowers reported the violation to the official committing the violation, disclosed information that had already been disclosed, had a bad motive for the disclosure, failed to disclose in writing or when off duty, or took too long to disclose. In the 2012 Whistleblower Protection Enhancement Act (WPEA), Congress prohibited the use of any of these former reasons to dismiss whistleblower claims. 5 U.S.C. § 2302(f).
Q. How can I be sure that my whistleblowing will be protected?
A. “Participation” claims typically have stronger protections than “disclosure” claims. Employees who file or participate in official proceedings about retaliation have exceptionally broad protection. They are not required to show that they had a “reasonable belief,” or that their safety concerns were “substantial” or “specific.”
Federal employees have “participation” claims when they file any appeal, complaint, or grievance about whistleblower retaliation, when they testify or assist other employees in their complaints, or when they cooperate with or make any disclosure to the Inspector General, the Office of Special Counsel (OSC), or “any other component responsible for internal investigation or review.” 5 U.S.C. § 2302(b)(9)(A)(i), (B) and (C).
Employees are also protected when they refuse to violate a law, rule or regulation, but they must have a reasonable belief that the order they are refusing to obey is a violation. 5 U.S.C. § 2302(b)(9)(D).
Q. When should I get a lawyer?
A. The sooner the better. A lawyer can help federal employees raise their concerns in a manner that is more likely to win protected status. A lawyer can help a client choose the most effective avenues for relief, document their protected activity, the decision-maker’s knowledge of that protected activity, and preserve evidence that will be useful in winning a case later.
Q. Are there any time limits for taking action?
A. There is no time limit for making a disclosure about illegality or unsafe conditions. 5 U.S.C. § 2302(f)(1)(G). There is a time limit for making a complaint about unlawful retaliation. If an employee is fired, demoted, furloughed, denied a within-grade-increase (WIGI), or suspended for more than 14 days, the time limit to appeal to the MSPB is 30 days. 5 C.F.R. § 1201.22(b)(1). The time limit to file a retaliation complaint with the Office of Special Counsel is three (3) years. 5 U.S.C. § 1214(a)(6)(iii).
Richard R. Renner is a partner at Kalijarvi, Chuzi, Newman & Fitch, P.C. and has over 30 years of experience representing federal, state, local and private sector employees in a wide range of civil rights and whistleblower cases. He has particular expertise in finding available claims among the many federal and state whistleblower protections.