As Minnesota businesses continue to reopen, and schools get ready to start, employees are returning to work with a heightened concern for personal safety. This has led to new sources of workplace conflict.
For example:
Scenario 1: Employee was fearful about returning to work and constantly criticized the employer’s COVID-19 protocols. He twice called the safety director to complain about the lack of hand sanitizers on the floor, and once held up production by refusing to use a machine where, as he put it, a co-worker “got his COVID germs all over it.” Two weeks after being recalled, he was laid off for lack of work and believes that was retaliated against for voicing safety related concerns.
Scenario 2: Employee is adamant and outspoken about wearing a mask, and frequently calls out other employees for not wearing one. Her co-workers have now taken to standing very close to her when talking, pretending to cough when they pass by and calling her “the masked marvel.” When she complains, her supervisor just suggests that she should “mind her own business and let her co-workers mind theirs.”
Government Enforcement
The Minnesota Occupational Health and Safety Division of the State Department of Labor and Industry has taken the position that concerns about COVID-19, and about how employees are treated for voicing such concerns, will be addressed as whistleblower issues. The Department (commonly called “Minnesota OSHA” or just “MNOSHA”) will receive complaints and conduct investigations that may include document review, employee interviews and other standard investigative techniques. Typical remedies, such as reinstatement and backpay, may be ordered.
Thus, in Scenario 1, MNOSHA will look to determine whether and to what extent the employer followed their customary staff reduction policies and practices, and whether there is any direct evidence linking the employee’s safety-related complaints with his layoff. In Scenario 2, MNOSHA will look at whether the employee’s harassment complaints were given the same attention and follow-up as non-COVID related complaints, and whether there is any evidence of bias against her for having raised these sorts of concerns.
A third scenario is emerging where employees complain that in violation of the Governor’s executive orders, they are being called into work when they can effectively work from home. At present, these concerns appear to be directed to the State’s “Work from Home Violations Helpline” and could result in a follow-up communication from the State reminding the employer of the Executive Order’s requirements and a directive for written affirmation of compliance. It remains to be seen what additional enforcement methods might be utilized.
Bottom Line
New workplace concerns arising from the pandemic have resulted in new enforcement mechanisms. However, the bottom line remains the same – employers should remain vigilant about their obligations under the law and try to resolve conflicts over those obligations internally so as to avoid unnecessary outside intervention.