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Can Your Employer Fire You for Raising Safety Concerns Over Coronavirus?

Factory workers with face mask protect from outbreak of Corona Virus Disease 2019 or COVID-19.
By Richard Dahl on May 12, 2020 1:14 PM

In most cases, an employer can legally fire you if you refuse to come back to work following a coronavirus-related business shutdown. Fear of the coronavirus isn't generally a good enough argument to stay away and keep collecting unemployment.

But what if they fire you if you complain about inadequate safety measures?

In that case, you may have a better legal argument to make.

Has Amazon Retaliated Against Whistleblowers?

Alleged retaliatory firings of whistleblowers by Amazon, for instance, have attracted the attention of the New York Attorney General's office. A Staten Island warehouse worker, Christian Smalls, filed a complaint to the state health department on March 21, alleging that the facility wasn't being cleaned sufficiently, that infected workers were coming in and out, and that the six-foot distancing rule wasn't being followed.

On March 30, Smalls led a protest at the site during his lunch break, and that same day Amazon fired him.

National Public Radio obtained a letter from the office of New York Attorney General Letitia James saying that the office was investigating whether Amazon had broken federal worker safety laws and state whistleblower laws when it fired Smalls.

The letter noted that the preliminary findings of the investigation "raise serious concern that Amazon may have discharged [Smalls] in order to silence his complaints and send a threatening message to other employees that they should also keep quiet about any health and safety concerns."

The letter also said that the AG's office is investigating "other cases of potential illegal retaliation" in New York.

Elsewhere, Amazon has also drawn heat elsewhere for alleged lack of workplace safety, firing two employees in Seattle and one in Minnesota.

Because Amazon workers are "at-will" employees, like the vast majority of workers in the U.S., Amazon can legally fire them for no reason. However, when firings are illegal — for instance, based on race or religion — the fired workers have a legal argument that can provide a solid basis for a lawsuit or claim.

Steps You Can Take

In the case of retaliatory firings like those that Amazon is alleged to have committed, the Occupational Safety and Health Act (OSHA) comes into play. In particular, OSHA contains two sections that apply:

  • The General Duty clause, which requires employers to keep employees "free from recognized hazards that are causing or are likely to cause death or serious physical harm."
  • OSHA's Whistleblower Protection laws. People who believe they have been fired for blowing the whistle on workplace safety may file a claim with OSHA.

Retaliatory firings can also violate state laws, which vary. Many states have their own versions of OSHA, and many are tougher.

Ann-Marie Ahern, a labor and employment lawyer in Cleveland, Ohio, told TIME magazine, "One of the challenges with understanding your rights as an employee is that each state has different rules and laws that can augment federal law. For instance, workers in California enjoy far more protection in the workplace than almost anywhere else in the U.S."

Meanwhile, there's an additional legal avenue for workers who are fired for walking off the job for safety concerns: The National Labor Relations Act.

The NLRA provides "concerted activity" protections for workers who refuse to come to work for safety reasons or for following an order they consider unsafe, such as not wearing a face mask.

The key is whether two or more employees feel endangered. If their employer fires them for their actions, they may have a claim and can do either online or in person at their local National Labor Relations Board office.

After reviewing claims, both OSHA and the NLRB may issue penalties and order job reinstatements.

Your employer has an obligation to provide and maintain a safe environment for you to work in. If you have spoken about an employer's failure to do so and been fired, you may have a claim to file via OSHA or NLRA. You might also want to speak to an experienced employment law attorney to ensure that your rights are protected.

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