Best Ohio Employment Discrimination Attorney Answer: Can my employer fire me for reporting exposure to COVID-19 safety violations? Can I sue my employer for firing me after I quarantined because I got the Coronavirus? What are my employers required to do to prevent the spread of COVID?
The COVID pandemic is still rampaging across the United States and does not seem to be slowing down any time soon. It seems increasingly likely that protective measures are going to be in place for the foreseeable future. We’ve discussed different areas of employment law relating to COVID-19 on this blog before. (See COVID Law: Can My Job Make Me Wear A Mask At Work?; More Disability Law: Working From Home After COVID-19?; and Does Race Discrimination Count On Video Calls?). So, what happens if an employee reports violation of these protective measures and is then terminated? Is there anything an employee can do? Is it illegal for an employer to do so? The Top Ohio Employment Law Attorneys are here to answer your questions!
There are two avenues through which we will tackle this problem. Firstly, we will discuss whether you qualify as a whistleblower if you report COVID-19 violations. Then, we will discuss other various policies and laws that could provide relief if you’re terminated for reporting these violations.
To start, let’s quickly go over what whistleblower protections exist for employees under federal and state law against making protected complaints? On the federal level, there is the Whistleblower Protection Act Specifically, under 5 U.S.C. § 2302(b)(8), a federal employer may not fire or fail to hire an individual because they report what they believe to be:
- A violation of any law, rule, or regulation;
- Gross mismanagement;
- Gross waste of funds;
- An abuse of authority; or
- A substantial and specific danger to public health or safety.
While this specific law only applies to federal employees, it does seem pretty clear that violations of COVID-19 safety regulations would be a substantial danger to public health or safety. It’s very possible that if you are a federal employee that is fired after reporting these violations, you could be covered under this Act.
Private Ohio employees, on the other hand, are protected under Ohio Revised Code § 4113.52. Under O.R.C. § 4113.52, an employer may not take disciplinary or retaliatory actions against an employee for reporting “a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety. . .” R.C. § 4113.52(A)(1)(a).
Astute readers may notice that this statute only applies to criminal offenses. For those that don’t know, a criminal offense is something that is codified by the legislature and carries criminal punishments, as opposed to civil penalties such as fines. Most orders and laws over COVID-19, such as masking mandates, have civil penalties for violations as opposed to criminal punishments such as parole or even jail-time. However, it is not impossible for a city or state to create a criminal offense for failing to mask or other safety violations. Should this be the case in your city, you may have an avenue for being a whistleblower. However, unless that is the case, it seems unlikely you could be considered a whistleblower under R.C. § 4113.52 for reporting COVID-19 safety violations.
So, unless you are a federal employee or are in a city with a criminal statute against COVID-19 violations, you are not a whistleblower. Does that mean you are out of luck? Nope, our employment law attorneys believe that you have another avenue for relief. If you are terminated in a way that goes against an established public policy, you are entitled to sue the employer.
The Ohio Supreme Court has acknowledged this in the case of Greeley v. Miami Valley Maintenance Contrs., Inc. I won’t go over every detail of the case to save you a few minutes (feel free to read it in your own spare time), but to make a long story short, the Ohio Supreme Court established that “[i]n Ohio, a cause of action for wrongful discharge in violation of public policy may be brought in tort.” 49 Ohio St.3d 228. In other words, you may sue your employer for terminating your employment if your termination violates an established public policy.
Now that we know the basis for this, what public policy exists that COVID-19 safety violations would fall under? That policy is codified in Ohio Revised Code § 4101.11. R.C. § 4101.11 states:
Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. R.C. § 4101.11.
In other words, your employer must provide a work environment that protects your health and safety. This is where the COVID-19 violation complaints come in. If you are terminated for reporting these violations, this would dissuade other employees from making such complaints, meaning the employer would not have to follow this law. This goes against a clear public policy to provide a safe work environment to all employees.
Indeed, our employment lawyers just got a great ruling on this from the Honorable Judge Joseph V. McNamara of the Lucas County Court of Common Pleas, who held:
The Court finds Ohio’s “Stay at Home” Order is an appropriate source of law from which to derive a public policy. Further, the Court agrees with Deluca that the “Stay at Home” Order manifests a “strong public policy to stop the spread of the COVID-19 virus.” Although the “Stay at Home” Order does not require employers to permit employees exposed to COVID-19 to self-quarantine, Deluca’s complaint does contain other potentially actionable allegations. Specifically, Deluca contends that upon reporting his COVID-19 exposure, he was “berated” by a supervisor, instructed to self-quarantine, arid subsequently terminated within three hours. Essentially, Deluca alleges FDI terminated him for reporting his on-the-job COVID-19 exposure. Employers terminating employees for merely reporting COVID-19 exposure would obviously discourage employees from reporting COVID-19 exposures, which would arguably run contrary to Ohio’s clearly articulated policy of containing the spread of the disease.
The Court further added:
In other contexts, Ohio courts have acknowledged “[p ]reventing the spread of COVID-19 is an important public policy.” State v. Banks, 202 l-Ohio-4330, ¶ 24 (recognizing that the COVID-19 pandemic “may warrant an exception to face-to-face confrontation under the appropriate circumstances.”); State v. Castonguay, 202lOhio-3116, ¶ 39 (“as noted by the trial court, the effect of the Covid-19 ‘conundrum’ has served to make it a matter of public policy and health concerns to allow witnesses to testify remotely.”).
Even if this may seem like a stretch to you, let’s take a deeper look at the part of the statute that states “follow and obey orders.” On July 24, 2020, The Director of the Ohio Department of Health (“DOH”) issued an order for employers to take action to prevent the spread of the disease. Some of the actions that are relevant to this discussion are:
- Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. . .;
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered;
- Frequently perform enhanced environmental cleaning of commonly touched surfaces . . . Provide disposable wipes so that commonly used surfaces can be wiped down by employees . . . ;
- Comply with all applicable guidance from the U.S. Centers for Disease Control and Prevention and the Ohio Department of Health regarding social distancing.
If we look at R.C. § 4101.11 in conjunction with this order, many COVID-19 safety violations would fall under this umbrella. This means that if an employer fails to provide these safety implementations, they would be in violation of this order, meaning they would be in violation of R.C. § 4101.11, meaning your termination would be in clear violation of this public policy. Quite the rollercoaster, but what this means is that while there may not be many protections for you under federal or state whistleblower statutes, there is a strong likelihood that you may have a public policy claim against your termination.
Let’s look at a hypothetical example of how we would make a public policy claim work when it involves COVID-19. Let’s say your workplace’s ventilation system isn’t working. You make a complaint to a supervisor and express that you’re afraid that the subpar ventilation could cause the spread of COVID-19. Not only do they refuse to fix the system, but they terminate you for even making the complaint. In order to sue for wrongful termination, you would have that argue that R.C. § 4101.11, as a public policy, would apply here since they are failing to maintain a safe work environment. They are failing to follow the order, which states to follow all CDC guidelines. There is a CDC guideline that specifically requires workplaces to “ensure ventilation systems operate properly and provide acceptable indoor air quality for the current occupancy level for each space.” Therefore, by violating this CDC guideline, they are violating the DOH order, which means they are violating R.C. § 4101.11 and are thus violating a public policy for workplace safety. Boom, it’s that simple. I’m joking of course, this is a rather complicated way of solving a complicated problem. Unfortunately, however, there just aren’t any state or federal protections specifically for reporting COVID-19 related safety hazards. Until then, public policy is how we’re going to have to make sure employers are taking this pandemic as seriously as they should be.
So, what should you do if you’ve been fired for reporting COVID-19 related safety violations? Call the right attorney!
At Spitz, The Employee’s Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Toledo and Cincinnati to get help now. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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