Philadelphia Protects COVID-19 Whistleblowers from Retaliation

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Patricia Tsipras

June 29, 2020

On Friday, the City of Philadelphia amended its Administrative Code to add a new chapter entitled, Employee Protections in Connection with COVID-19 Emergency Health Order.  The amendment is designed to provide workplace protections in emergency health orders and regulations and to provide protections for employees (i) against retaliatory actions for the disclosure of information related to an employer’s non-compliance with such orders and (ii) for refusal to work under unsafe conditions caused by non-compliance with such orders.

Protections

Under the new law, employers shall not take adverse employment action (including, but not limited to, a reduction in pay, termination, refusal to hire, harassment, or threats regarding perceived immigration status) against a person for refusing to work in unsafe conditions if the person reasonably believes that the employer is operating in violation of a COVID-19 public health order in a manner that creates an unsafe condition of which the person has notified the employer.  However, a person may not refuse to work if the employer provides a reasonable alternate work assignment that does not expose the person to the unsafe condition or, upon inspection by the Philadelphia or Pennsylvania Department of Health, the employer proves it is compliant with all public health orders.

Employers also shall not take adverse action against a person who, in good faith, “demonstrates an intention to disclose” (think “blow the whistle”) information that may evidence a violation of a public health order.

Presumption of Retaliation

A rebuttable presumption of retaliation exists if an employer takes adverse action against a person within 90 days of the person’s exercise of rights under this law.  An employer may rebut the presumption with evidence that it took the adverse action for a permissible purpose.

Enforcement and Remedies

A person may bring a private right of action against an employer after submitting a complaint to the City’s Department of Labor and getting a right to sue.  Available remedies include reinstatement, back pay, and other compensatory damages, attorney’s fees, and costs.  An employee also may seek civil penalties on behalf of the City for each day in which a violation occurs.

The City’s Department of Labor also may seek penalties and fines for violations of this law.  Remedies may include reinstatement and full restitution to the employee for lost wages and benefits.

 
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