On December 22, 2020, the Oregon Occupational Safety and Health Division (Oregon OSHA) published a press release reminding employers that they are prohibited from retaliating against employees who “need to quarantine or isolate due to the COVID-19 pandemic.” These protections are part of Oregon OSHA’s Temporary Rule Addressing COVID-19 Workplace Risks, which took effect on November 16, 2020 and “is expected to remain in effect until May 4, 2021.”
“If employees have been told or need to quarantine or isolate due to COVID-19, they must be allowed,” said Michael Wood, an administrator for Oregon OSHA, in the reminder. “Also, their employer must not penalize them for doing so. If employers violate this rule, it could be costly.”
Violations of this temporary anti-retaliation rule can lead to penalties ranging between $100 and $12,750 “for a violation that is not willful and between $8,900 and $124,749 for a willful violation,” according to the press release.
The temporary rule sets forth that “if an employee must quarantine or isolate for COVID-19, the employer must allow the employee to work at home if suitable work is available and the employee’s condition does not prevent it.” It also states that employees who have quarantined or isolated due to COVID-19 “either due to the temporary rule or because their employer takes extra precautions…must be allowed to return to their previous job duties if they are still available and without any adverse action.”
The reminder also emphasizes to employers that under ORS 654.062(5), “employees are protected from discrimination or retaliation.”
Congress established the federal OSHA agency in 1970 with the Occupational Safety and Health Act of 1970. OSHA’s objective is “to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance,” according to the “About” webpage. In 1972, Oregon passed its own worker and workplace safety law, the Oregon Safe Employment Act (OSEA). OSEA “authorized Oregon OSHA to enforce statewide workplace safety and health rules,” according to the website. OSEA also contains anti-retaliation provisions protecting employees who are “concerns about safety or health conditions.”
Recently, OSHA’s federal whistleblower program has come under fire for its handling of COVID-19 whistleblowers’ cases: in August of 2020, the Department of Labor Office of Inspector General (OIG) issued a report that found OSHA’s Whistleblower Protection Program had staffing shortages. The report states that these shortages, paired with an increase in whistleblower complaints due to the COVID-19 pandemic, had “the potential to severely hinder the agency’s ability to investigate claims in a timely manner,” according to past WNN reporting. In September of 2020, the National Employment Law Project released a separate report which expanded on the ways in which OSHA has been failing to protect workers during the COVID-19 pandemic.