How Whistleblower Protections Could Help Us Fight COVID

The Trump administration’s efforts to protect workers amidst the COVID pandemic have been beyond inadequate.

The federal agency charged with protecting our health and safety at work, the Occupational Safety and Health Administration (OSHA), has issued no COVID-related enforceable regulations, visited very few workplaces to investigate dangerous conditions, and dispensed only a handful of insultingly small fines to employers whose disregard for their employees have led to dozens of deaths.

Given this dereliction of duty, one of New York’s best hopes to keep workers and the public safe may be whistleblowers. But while New York does have a whistleblower law, it is far from adequate to meet the challenges of the pandemic. It’s up to lawmakers to make this law stronger.

Whistleblowers are typically employees who speak out against abuse, exploitation, unsafe work conditions or illegal corporate or governmental action. They expose dangers that, by definition, are matters of great public concern. Because employers have an obvious interest in keeping secret the hazards that exist in their workplaces, whistleblowers are often the only people who are in a position to speak out.

Protecting the right to speak out and “blow the whistle” without fear of retribution is a cornerstone of our democracy. As early as 1778, in recognition of the firing of two naval officers for reporting misconduct by the Commander-in-Chief of the Continental Navy, the members of the Continental Congress unanimously passed the first whistleblower legislation in the United States.

As New Yorkers return to work, and a second wave of COVID threatens our state, many workers are wondering, “Will I be safe from COVID in my workplace?” and “What are my rights if I believe the conditions at my workplace are endangering my health or safety?”

Essential workers, who have been working every day since the pandemic began, have seen first-hand the devastating effects of the failure to provide sufficient protection against the spread of COVID in their workplaces. In the health care industry alone, over 900 workers nationwide have died of the coronavirus.

For every worker who toils in an environment where risk of COVID infection is high, there are family members, friends and a separate community who also risk infection.

Those who dared to speak out about lack of personal protective equipment, inadequate cleaning and disinfection, or secrecy surrounding ill co-workers were fired or threatened with firing.

In April, Amazon terminated a worker at its large fulfillment center on Staten Island because he called on Amazon to shut down the facility for deep cleaning after multiple cases of COVID had emerged. By May, at least one worker from the same fulfillment center, and another from an Amazon warehouse in Bethpage, had died.

The NYU Medical Center, which employs more than 30,000 workers, went so far as to threaten employees with disciplinary action, including termination, if they talked to the media about the lack of PPE and other COVID protections.

Because OSHA has been unwilling to issue COVID-protection safety standards and mandate adherence by all workplaces, workers who choose to speak out or refuse to enter the workplace have been unable to insulate themselves from retaliation through the OSHA Whistleblower Protection Program. Other avenues like the First Amendment, which applies only to public employees, and the National Labor Relations Act, which requires employees to act in concert with other employees, are also foreclosed.

The obvious solution is the New York whistleblower law, but unless it is amended, it cannot protect those who speak out against employers who fail to safeguard their employees from COVID.

In New York, whistleblowers are protected from retaliatory action by employers when the employee discloses, or threatens to disclose to a supervisor or the government acts of the employer that violate the law and create a substantial danger to the public health or safety.

Our whistleblower law falls short in a number of ways. By requiring a violation of law, in addition to the existence of an unsafe or unhealthy workplace, situations where laws have yet to be enacted, like COVID, are not covered. In addition, the law, which was enacted in 1984, fails to recognize the realities of 21st century communication; it lacks protection for employees who disclose, or threaten to disclose, information to the news media or by posting on a social media forum. Our state legislature can and must pass these amendments immediately to ensure robust protection for whistleblowers.

In addition to amending New Yorks whistleblower law, another way we can prevent the spread of COVID is by passing the recently introduced NY HERO Act. NY HERO would create mandatory and enforceable COVID prevention standards that would apply to all workplaces. It would also prohibit employers from discriminating, threatening, retaliating, or taking other adverse action against any employees who speak out about their rights to a safe and healthy workplace, including refusing to go to work.

For every worker who toils in an environment where risk of COVID infection is high, there are family members, friends and a separate community who also risk infection. No one wants to return to the dark days of spring 2020 where New Yorkers were experiencing almost 10,000 new cases and over 1000 death per day.

By protecting the freedom of courageous employees to speak out without fear of retaliation, we can protect the health and safety of us all.

New Yorkers who experience unsafe working conditions in their workplace can learn more about their rights here.