Philadelphia is making sure employers err on the side of caution when it comes to COVID-19. As of June 26, 2020, Philadelphia-based employees have additional protections from retaliation through the unanimously passed the Essential Workers Protection Act (“EWPA” or “Act”), which prohibits retaliation against any employee who speaks out about, or refuses to work due to, the employer’s non-compliance with Pennsylvania and Philadelphia COVID-19 public health orders. The EWPA applies to all Philadelphia employers, regardless of their size.
The EWPA’s anti-retaliation protection is two-pronged. First, employers may not take an adverse employment action (e.g., terminate, reduce pay, adversely change hours, or refuse to employ) against an employee who makes a “protected disclosure.” A protected disclosure is “a good faith communication” that reveals information that may prove a violation of a state or city COVID-19 public health order. While the Act does not specify to whom a protected disclosure must be directed, employers should assume that the statue will be broadly construed to cover any employer-known disclosure of a violation of a state or city COVID-19 public health order. However, a communication is not protected unless it discloses “or demonstrates an intention to disclose” information that relates to a violation of a COVID-19 public health order that could “significantly threaten the health or safety of employees or the public” and that communication was “made for the purpose of remedying such violation.”
Second, employers are prohibited from taking an adverse employment action against an employee who: (1) refuses to work in conditions they reasonably believe violate state or city COVID-19 public health orders; and (2) has notified the employer of that unsafe condition. Employees may not refuse to work, however, if the employer offers a “reasonable alternative work assignment that does not expose the employee to the unsafe condition,” or the employer proves its compliance with all applicable public health orders.
The EWPA is employee-friendly. Even employees who “mistakenly” allege noncompliance with a COVID-19 public health order enjoy protection, so long as the allegation was reasonable and made in good faith. In addition, the EWPA establishes a “rebuttable presumption of retaliation” against an employer if it takes an adverse action against an employee within 90 days of the employee’s exercise of rights thereunder.
Employees have two mechanisms for enforcing their rights under the Act. First, they can file a complaint with the Philadelphia Department of Labor (“DOL”) using the same procedures that currently exist for violations of the wage theft law. If there is a violation, the DOL is authorized to seek penalties and fines, as well as order reinstatement and full restitution to the employee for lost wages and benefits.
Second, the EWPA provides employees with a private right of action. Once administrative remedies are exhausted, employees may sue employers in court for violating the EWPA. In addition to seeking civil penalties on behalf of the City for each day a violation occurs, successful employees may be awarded reinstatement, back pay, and other compensatory damages, and recover attorney’s fees and costs. Filing a civil action under the EWPA will not preclude the employee from filing a wrongful termination, discrimination, or other employment law claim based on the same facts under otherwise applicable law.
What Employers Should Do Now
Philadelphia employers should take immediate steps to ensure that their workplaces comply with all Pennsylvania and Philadelphia COVID-19 public health orders. Employers should put mechanisms in place to investigate all employee concerns raised regarding about workplace safety, and carefully document that investigation process. In addition, supervisors and Human Resources employees should be informed of the protections offered by the EWPA and be reminded to carefully consider any planned adverse action against an employee who has raised a health or safety concern. If a planned adverse action could be considered retaliatory, employers should consult with legal counsel before taking such action. If you have any questions regarding the EWPA, please reach out to the authors or your Epstein Becker & Green, P.C. attorney.