NOBODY WINS WITH SILENCE: WHY STATE GOVERNMENTS SHOULD LEVERAGE COVID-19 RELIEF TO DETER WORKPLACE GAG ORDERS
By: Frances Daniels, Volume 105 Staff Member
The year 2020 has brought an unprecedented level of stress into the life of the average U.S. citizen; a global pandemic, a highly polarized political election, civil unrest in the wake of the killing of George Floyd, and economic instability are just a few of the issues plaguing the American psyche. Reporting to work each day provides a sense of routine, normalcy, and community to some. But to others returning to work has become another source of anxiety due to employer enforced “gag orders” surrounding COVID-19 infection reporting. Bloomberg Businessweek described how workers across many industries have been ordered to remain silent about positive COVID-19 tests and possible exposures in the workplace. Some companies are going beyond suppressing information and taking an active role by targeting and terminating employees for speaking out about unsafe workplace practices. This post will look at the insidious nature of information suppression and recommend government action designed to disincentivize the emerging gag order practice.
I. CURRENT FEDERAL ACTION IS INADEQUATE TO PROTECT EMPLOYEE WORKPLACE SAFETY
Employer sponsored gag orders are unreasonable and conflict with traditional regulatory standards of workplace safety reporting. It is difficult to determine why companies would participate in gag orders because workers are in the best position to evaluate the risks of virus contraction in their specific environments and offer solutions to reduce transmission. The only caveat is that they must be armed with adequate exposure risk data to make this a reality. COVID-19 is more lethal to those with certain health histories. Transparent information about workplace exposure would allow employees to balance this information with their own personal health history and more adequately assess daily personal risk and protection measures against the coronavirus threat. Without access to internal conversations, one can only speculate that gag orders are an attempt to control the spread of coronavirus exposure information and reduce possible liability for the company. Some corporations claim to enforce silence due to concerns for employee health privacy but these claims are largely misguided.
Relying on the Health Insurance Portability and Accountability Act (HIPAA) to suppress coronavirus data fails for several reasons. First, HIPAA regulation only applies to “covered agencies,” which includes healthcare providers and business associates. HIPAA excludes much of the business sector from its health information disclosure standards and includes no barriers for employees who wish to disclose this information themselves. Furthermore, the Office of Civil Rights and the Department of Health and Human Services have announced they will relax enforcement of HIPAA violations of covered entities for the greater interest of rapid data access to combat the evolving pandemic. This demonstrates that federal health agencies prioritize population safety over individual privacy rights during the spread of a novel, contagious illness. Additionally, there are established regulations that already require employers to provide transparent documentation and records of workplace injury or illness. As state legislatures expand the definition of a workplace illness to include COVID-19, employers have both an ethical and legal obligation to keep transparent data of employee COVID-19 infection rates.
Redress for employee workplace safety is traditionally found through filing a complaint with the Occupational Health & Safety Administration (OSHA) or the National Labor Relations Board (NLRB). OSHA has been highly criticized during the Trump administration as inefficient and ineffective. Thus far into the pandemic, there have been over 1500 whistleblower complaints filed through OSHA. With less than half of complaints being investigated and only two percent being settled, critics argue that OSHA is failing to live up to its purpose and enforce federal regulations. The NLRB has been slightly more responsive with General Counsel declaring that the agency will still enforce “protected concerted activity” in the wake of the pandemic. The COVID-19 pandemic is a rapidly evolving public health crisis that requires employee access to equally rapid redress and safety measures. If OSHA proves to be an inadequate route of protection for employees, other avenues must be created for those wishing to file workplace safety complaints. Several states and municipalities have already enacted legislation to make up for federal insufficiency.
II. GOVERNING BODIES CAN LEVERAGE RELIEF SPENDING TO PROMOTE TRANSPARENT VIRUS REPORTING
There are several actions that state governments can take to ameliorate this issue and support collaborative workplace engagement to prevent the spread of COVID-19 and workplace anxiety surrounding the pandemic. First, legislative bodies can use their spending power to require workplace safety and virus reporting standards with relief loans and grants. Many states have established programs that offer funding opportunities to small businesses struggling from forced closure or a depressed economy. Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the federal government has allocated over $650 billion in aid directly to small businesses under the Paycheck Protection Program. Attaching mandatory workplace safety and COVID-19 reporting requirements to financial relief measures would increase compliance in the absence of agency enforcement under OSHA and NLRB. For businesses that do not fall into the small business catchment, governments can offer tax incentives for companies that demonstrate an adherence to recommended OSHA standards for employee safety and reporting. Both of these options incentivize employers to be proactive and make changes on the front end to secure program eligibility, instead of the traditional backend incentives of fines and litigation expense. Opponents may argue that it is unreasonable and burdensome for companies to keep up with best safety practices while new information about the virus is coming out daily. Reporting requirements are not any more burdensome than managing current staffing changes and absences for those employees that call out sick with COVID-19. Additionally, many of the core recommendations (i.e. social distancing, PPE, and frequent sanitizing) have been consistent from the onset of the pandemic. Regular meetings to evaluate the efficacy of adopted protections and the need for additional measures should suffice to demonstrate an adequate effort to promote employee safety.
Second, to provide specific protection for employees who speak out, states can enact their own whistleblower retaliation protection. This would allow working residents a state level claim for redress with more accountability and follow through than current OSHA enforcement. For example, recent Colorado legislation prohibits a wide range of employer activities, including (1) discrimination against an employee who raises reasonable heath concerns, (2) any attempt of employer to have employee sign or enforce a health and safety non-disclosure contract, and (3) discrimination against employees who choose to wear PPE in the workplace. Colorado’s comprehensive workplace discrimination law not only protects the right to report health concerns but also addresses those equally insidious workplace practices that attempt to bully employees into compliance with a company policy of silent denial.
Finally, many state legislatures have passed legislation to waive civil liability for businesses from COVID-19 exposure claims. This route would disincentivize gag orders for those companies concerned about controlling information in an attempt to reduce exposure to legal recourse. As more states move to reopen economies, these waivers should go beyond “good faith” effort and define recklessness under a gross-negligence standard to include the implementation of gag orders and attempts to suppress transparent risk assessment policies. Legislation should avoid ambiguous terms like “good faith” effort due to the array of possible interpretations. Georgia recently enacted legislation that provides a rebuttable presumption of assumption of the risk if a COVID-19 warning sign is posted upon entry. A “good faith” effort in Georgia is taken to mean “a sign in at least one-inch Arial font placed apart from any other text.” Instead, legislatures should look to CDC guidelines for recommended practices targeting different industries. Using the guidelines from a medical governing body would set an equitable floor for the procedures a business must enact for the privilege of a liability waiver in exposure claims.
Promoting employer-employee coordination and transparency around COVID-19 safety practices has a multitude of benefits. It would decrease workplace anxiety and fear as well as decrease transmission of the virus by allowing employees to adequately manage their own risks in the workplace. Armed with correct, updated information about possible exposures, employees are incentivized to establish safe cleaning and distancing practices in their daily routines and not succumb to the laxity that can creep in as emergent situations begin to normalize. With over ten million people in the U.S. testing positive for the virus (a number increasing daily), the stigma surrounding contracting COVID-19 can be minimized through transparent reporting practices, employer-employee collaborative engagement, and protection for whistleblowers. If political actors are serious about the concurrent goals of getting the economy operating more robustly while protecting citizens from COVID-19, they need to start creating legislation with incentives to achieve these aims.
 Stress in the Time of COVID-19, Am. Psych. Ass’n (Vol. 2, June 2020), https://www.apa.org/news/press/releases/stress/2020/stress-in-america-COVID-june.pdf [https://perma.cc/Q7ZW-XAEQ].
 Josh Eidelson, COVID Gag Rules at U.S. Companies are Putting Everyone at Risk, Bloomberg Businessweek (Aug. 27, 2020), https://www.bloomberg.com/news/features/2020-08-27/COVID-pandemic-u-s-businesses-issue-gag-rules-to-stop-workers-from-talking [https://perma.cc/283N-J82X].
 Matt Day, Amazon Vice President Quits in Protest Over Company’s Alleged Firings of Coronavirus “Whistleblowers,” Time (May 4, 2020), https://time.com/5831674/amazon-engineer-quits-coronavirus-whistleblowers/ [https://perma.cc/G63D-DQK6].
 Evidence Used to Update the List of Underlying Medical Conditions that Increase a Person’s Risk of Severe Illness from COVID-19, CDC (Nov. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html [https://perma.cc/7CPG-2A5L].
 See Eidelson, supra note 2.
 45 C.F.R. §§ 160.102–.103 (2019).
 Press Release, U.S. Dep’t of Health & Hum. Servs., OCR Announces Notification of Enforcement Discretion to Allow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and Health Oversight Activities During The COVID-19 Nationwide Public Health Emergency (Apr. 2, 2020), https://www.hhs.gov/about/news/2020/04/02/ocr-announces-notification-of-enforcement-discretion.html [https://perma.cc/EJA3-7KR5].
 29 C.F.R. § 1904.35 (2019).
 See e.g., H.B. 605, 133d Gen. Assemb., Reg. Sess. (Ohio 2020).
 Ted Knutson, Worker Dangers Up as Trump OSHA Cuts Come Home to Roost Say AFL-CIO Exec, Ex-DOL Official, Forbes (Apr. 1, 2020), https://www.forbes.com/sites/tedknutson/2020/04/01/worker-dangers-up-as-trump-osha-cuts-come-home-to-roost-say-afl-cio-exec-ex-dol-official/#2c4c9b778bf5 [https://perma.cc/4M6F-Z2G3].
 Weekly reports of COVID-19 related whistleblower complaints are compiled under the Freedom of Information Act at the OSHA website and can be accessed here: https://www.osha.gov/foia/archived-COVID-19-data [https://perma.cc/M8WA-LFSQ].
 Deborah Berkowitz & Shayla Thompson, OSHA Must Protect COVID Whistleblowers Who File Retaliation Complaints, Nat’l Emp. L. Project (Oct. 8, 2020), https://www.nelp.org/publication/osha-failed-protect-whistleblowers-filed-COVID-retaliation-complaints/ [https://perma.cc/25JG-P2MU]. See also Louise Esola, Labor Unions Sue OSHA Over Lack of Infectious Disease Standards, Bus. Ins. (Oct. 30, 2020), https://www.businessinsurance.com/article/20201030/NEWS08/912337465/Labor-unions-sue-OSHA-over-lack-of-infectious-disease-standard# [https://perma.cc/YRC8-QV5L].
 Memorandum CG20-14 from Peter B. Robb, Off. of the Gen. Counc. on Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues to NLRB Reg’l Dirs. (Sept. 18, 2020),
https://www.nlrb.gov/guidance/memos-research/general-counsel-memos [https://perma.cc/DB5X-ZD9Q]. Collective concerted bargaining is a phrase found in the United States Code labor protection for organized employee action. 29 USC § 157 (2020) (“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”).
 See e.g., Colo. Rev. Stat. § 8-14.4-102 (2020); Philadelphia, Pa., Code § 9-5000 (2020); Va. Dep’t of Lab. & Indus., § 16VAC25-220, Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19 (Jul. 15, 2020), https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf [https://perma.cc/ETG8-SEVB].
 Minnesota Small Business Relief Grants, Minn. Dep’t of Emp. & Econ. Dev., https://mn.gov/deed/business/financing-business/deed-programs/relief/ [https://perma.cc/52A4-7WE8] (last visited, Nov. 17, 2020).
 The CARES Act Provides Assistance to Small Businesses, U.S. Dep’t of the Treasury, https://home.treasury.gov/policy-issues/cares/assistance-for-small-businesses [https://perma.cc/86P8-DB8W] (last visited Nov. 17, 2020).
 See Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), CDC (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html [https://perma.cc/VD8E-Z9HG] [hereinafter Interim Guidance].
 Two states have already put COVID-19 whistleblower protections in place. See Colo. Rev. Stat. § 8-14.4-102 (2020); Va. Dep’t of Lab. & Indus., § 16VAC25-220, Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19 (Jul. 15, 2020), https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf [https://perma.cc/ETG8-SEVB].
 See Berkowitz & Thompson, supra note 13 (finding OSHA’s response to the COVID-19 health emergency wholly inadequate).
 Colo. Rev. Stat. § 8-14.4-102 (2020).
 See e.g., Iowa Code § 686D.5 (2020); N.C. Gen. Stat. § 66-470 (2020).
 Press Release, U.S. Dep’t of Lab., U.S. Department of Labor Considers Employer’s Good Faith Efforts When Enforcing Compliance During Coronavirus Pandemic (Apr. 16, 2020), https://www.osha.gov/news/newsreleases/national/04162020-0 [https://perma.cc/5WN7-SFGN].
 Ga. Code Ann. § 51-16-3 (2020).
 See Interim Guidance, supra note 18.
 CDC COVID Data Tracker, Cent. for Disease Control and Prevention, https://COVID.cdc.gov/COVID-data-tracker/#cases_casesper100klast7days [https://perma.cc/PDQ5-DSWX] (last visited Nov. 17, 2020).