Source: NCDOL, MAY/JUNE 2020

COVID-19 has become a household word in record time during the first quarter of calendar year 2020. Like “9/11” or “fake news” or “social media” COVID-19 is now a part of our shared, human experience. Every person has been touched by this pandemic in one way or another, worldwide. Despite the uncertainty of the changing COVID-19 landscape, people are valiantly struggling to keep themselves and their families safe.

North Carolina’s employees and employers are no exception. In these challenging times, it is difficult to know what responsibilities employers and employees have in the workplace with respect to COVID-19. And since the situation is constantly evolving, employers and employees must be vigilant, both inside and outside of our workplaces. They have to stay informed, heed the advice of the CDC and other health agencies, and comply with Gov. Cooper’s executive orders and orders from some local governments.

The N.C. Retaliatory Employment Discrimination Act (REDA) is not so well known or understood, nor is its application to situations involving COVID-19.

REDA is a North Carolina statute that protects employees from retaliation by their employers for engaging in certain protected activities. If an employee engages in conduct protected by one or more of the 11 separate statutes listed under REDA, the act prohibits the employer from retaliating against the employee because of that conduct. Retaliation under REDA means the employer has taken some adverse employment action against the employee, such as termination, demotion, or reduction in hours. Most REDA complaints filed are related to workers’ compensation, occupational safety and health, and wage and hour disputes. The Retaliatory Employment Discrimination Bureau of NCDOL investigates complaints filed under REDA.

Not surprisingly, the bureau has seen a surge in calls and complaints involving COVID-19 over the last several months. Almost 50% of the weekly calls to the bureau’s helpline involve COVID-19 questions and concerns.

To state a REDA claim, an employee must prove that:

-- They are engaged in an activity protected by REDA under one of the 11 statutes; 

--The employer took an adverse action against the employee;

--The employer knew about the protected activity; and

--The employer took the action because of the protected activity.

So, does REDA protect employees who complain about COVID-19? There is no precedent for complaints related to a pandemic like COVID-19. We are exploring uncharted territory, and each complaint must be analyzed on a case-by-case basis.

Complaints under REDA involving COVID-19 are most likely going to fall under the Occupational Safety and Health Act of North Carolina, which is one of the 11 REDA statutes. In general, REDA protects an employee who, in good faith, files or threatens to file a complaint with the NCDOL Occupational Safety and Health (OSH) Division about a safety or health issue at work. Examples include a complaint about the lack of a safety guard on a machine that the law requires or the presence of particulate matter in a plant that is of a higher density than allowed by law.

Both the federal and state Occupational Safety and Health Acts state that an employer has a duty to provide employees with a “place of employment free from recognized hazards that are causing or likely to cause death or serious injury or serious physical harm to his employees.”

Certainly, as we learn more about COVID-19, it is clear that the virus poses serious risks to those who contract it, especially those with serious underlying medical conditions. Employers should, therefore, follow the current CDC and other health agencies’ guidance to protect the safety and health of their workers. If an employer does not, and an employee complains, and then is fired or otherwise retaliated against because of their complaint, the employee may have a claim under REDA. If the employer had a legitimate reason unrelated to the complaint, the REDA claim would fail. Here are some examples of the complaints we are receiving involving COVID-19: 

--Employee A alleged he was terminated because he complained about the lack of appropriate personal protective equipment for staff in a nursing home. Complaining about the lack of safety gear is a protected activity under REDA. 

--Employee B alleged that her employer terminated her because she could not provide a negative COVID-19 test. Her physician would not test her because she was asymptomatic. While perhaps unfair, REDA does not apply to this situation because Employee B did not engage in a protected activity under one of the statutes listed in REDA. 

--Employee C, a dental assistant, was allegedly told that if she did not return to work, which she felt was a violation of a stay-at-home order, she would be terminated. Unfortunately, under REDA, the threat of termination is not considered an adverse action. If she failed to return to work and was terminated, she could file a claim under REDA. Whether her refusal to work was a protected activity would be based upon the particular facts of the case. 

--Employee D, a nurse’s aide, alleged that he was terminated because he asked for a different assignment than on the floor of the hospital where patients with COVID-19 were being treated. He asked for the change because he has hypertension for which he took medication. Employee D may have a claim even though he refused a work assignment because he raised her good faith concerns to his employer and offered to submit to any alternative position.

--Employee E was terminated for staying home to take care of school-age children who were out of school because of the pandemic. Employee E did not engage in any protected activity under REDA, so his employer would not be in violation of REDA. Employee E may have rights under other statutes, but he does not have a claim under REDA.

There are more questions than answers with respect to the impact of COVID-19 on the workplace. Where are the lines between legitimate and retaliatory employer decisions made in the context of COVID-19? What protections are there for employees as businesses gradually reopen? For employers? How do guidelines issued by CDC; federal, state, and local health agencies; and federal, state, and local governments affect employee and employer rights and responsibilities under REDA? How do employers struggling to maintain their businesses, keep their employees on the payroll, and provide a safe workplace, comply with the statutes and guidelines?

NCDOL is working to provide reliable, accurate and up-to-date information to the citizens of North Carolina about COVID-19 and workplace safety and health issues. Employees and employers should also be aware that other federal and state equal employment opportunity and anti-discrimination laws may also be applicable in COVID-19 related issues, such as the Americans with Disabilities Act or the federal Occupational Safety and Health Act.

The EEOC, USDOL, federal OSHA, NCDOL and other agencies have published guidelines as a roadmap for employers and employees to navigate the twists and turns of maintaining a safe, healthful, and non-retaliatory workplace in the era of COVID-19. For general questions about the work of NCDOL, call 1-800-NC-LABOR (1-800-625-2267). 

For questions regarding REDA, call the Retaliatory Employment Discrimination Bureau at 919-707-7941.

For questions regarding safety and health concerns, contact the OSH division at 919-707-7876 or visit the NCDOL website.

For questions involving federal equal employment opportunity laws such as the Americans with Disabilities Act, contact the EEOC at 1-800-669-4000.