Governor Walz Issues COVID-19 Anti-Retaliation Order

On May 13, 2020, Governor Walz issued Emergency Executive Order 20-54 clarifying that employers are prohibited from retaliating against employees who voice safety concerns to management related to COVID-19. The Executive Order additionally provides a right for employees to wear their own personally-procured personal protective equipment (“PPE”) while working, unless certain factors discussed below are met.

What protections are employees already given regarding workplace safety?

Under Minnesota’s Occupational Safety and Health law, employers are already prohibited from discriminating or retaliating against employees who communicate with management personnel regarding occupational safety or health matters. Essentially, this law makes it illegal for employers to take adverse action against employees who voice good faith concerns that their workplace is unsafe.

That law also provides that workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm, and further prohibits employers from retaliating against employees who refuse to work in these “unsafe” conditions.

What does the Emergency Executive Order change?

Emergency Executive Order 20-54 clarifies that employees cannot be retaliated or discriminated against for engaging in the following COVID-19 related actions:

  • Communicating with management regarding COVID-19 related topics, including asking questions or expressing concerns;
  • Refusing to work based on a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with the potential of exposure to COVID-19; and
  • Filing a report with the Minnesota Department of Labor and Industry regarding a potentially hazardous work condition involving COVID-19.

The Emergency Executive Order itself does not provide guidance regarding what a “reasonable belief” that an environment is unsafe entails. Under Federal OSHA jurisprudence, determining whether a “reasonable belief” that a work environment is unsafe involves analyzing whether “a reasonable person would agree that there is a real danger of death or serious injury.” It is likely that the same standard would apply under the new Executive Order.

In light of this, employers should take note whenever an employee refuses to work because of concerns involving COVID-19. An employer taking adverse action against such an employee may face liability on a claim of retaliation, which carries the potential for an award of back pay, other damages incurred and attorney’s fees.

Employees have a right to wear PPE while at work.

The Emergency Executive Order additionally addresses employees’ use of PPE while at work, including the wearing of protective gear acquired by the employees themselves. Specifically, the Executive Order states that employers may not discriminate or retaliate in any way against a worker for wearing PPE in the course of their work (including gloves, cloth face covering, eye protection, or other protective gear which the worker has personally procured and reasonably believes will provide COVID-19 protection), so long as the PPE does not violate “industry standards or existing employer policies related to health, safety, or decency.” Given this broad standard, as well as the unclear definition of what would constitute a policy related to “decency,” employers should take caution before prohibiting employees from wearing personal protective gear, even if said gear may be inconsistent with the employer’s dress code.

However, the Executive Order reiterates that employers may require the use of “employer-provided” protective gear that meets or exceeds the protective gear procured by employees. Accordingly, should employers wish for employees to wear specific or “uniform” PPE with other workers, the employer must provide the PPE to employees.

The Executive Order additionally signals forthcoming disability accommodation guidance.

Finally, the Executive Order signals forthcoming clarifications regarding the duty to provide reasonable accommodations for disabilities related to COVID-19. Specifically, Governor Walz directed the Commissioner of the Minnesota Department of Human Rights to “issue guidance . . . regarding employers’ obligations to provide reasonable accommodations related to COVID-19 for qualified employees with disabilities . . . which may include employees with health conditions who are at high-risk . . . if they are exposed to or if they contract COVID-19.”

Bottom Line

The Emergency Executive Order clarifies the fact that employees have the right to express concerns to management regarding potential COVID-19 issues. Most notable of the Executive Order’s mandates is the right of employees to wear their self-procured PPE while working. Accordingly, employers should tread carefully when attempting to dictate what steps an employee can take to protect themselves from COVID-19 while on the job.