If you are a business with employees in Philadelphia, you need to know about Philadelphia’s new Essential Workers Protection Act. The Act, which was signed into law on Friday, June 26, 2020, protects workers who speak out about unsafe workplace conditions during the COVID-19 pandemic. The ordinance is one of the first of its kind in the country.
Who is covered?
All businesses, as well as corporate officers and executives, who employ individuals or otherwise exercise control over the wages, hours or working conditions of an employee. An employee is simply anyone working for an employer in Philadelphia. This is an incredibly broad definition that is not restricted by size, number of locations or any other parameters.
What is required?
The ordinance prohibits employers from taking adverse actions against employees in two instances:
1. Unsafe Conditions
- If an employee refuses to work in unsafe conditions provided the employee reasonably believes that the employer is operating in violation of COVID-19 public health order in a manner that has created the unsafe condition, and
- the employee has notified the employer of the unsafe condition.
However, if the employer provides a reasonable alternative work assignment that does not expose the employee to the unsafe condition or upon inspection by the Philadelphia or Pennsylvania Department of Health the business proves it is compliant with all public health orders addressing safe workplace practices.
2. Employee Protected Disclosures
An employer may not take an adverse action against an employee who:
- Makes a good faith communication that discloses information that “may evidence” unsafe working conditions that violate Pennsylvania’s or Philadelphia’s COVID-19 public health order that may significantly threaten the health or safety of employees or the public,
- if the purpose of the disclosure was to remedy the violation.
This includes statements about workplace safety made to management and reports to City or State authorities.
An employee is protected even if he or she is mistaken about the employer’s noncompliance, as long as the employee’s concern was reasonable and made in good faith. In addition, the ordinance contains a “rebuttable presumption of retaliation” if an employer takes an adverse action against an employee within 90 days of the employee exercising his or her rights under the ordinance.
What Are the Penalties?
Employees must first submit a complaint to the Department of Labor, and if they receive a probable cause finding, may file an action in court. If successful, the employee may be awarded reinstatement, back pay, compensatory damages, and attorneys’ fees and costs. This is significant as attorneys’ fees can add greatly to an award. Further, an employer may be subject to fines and civil penalties assessed by the City for violations.
How to Protect Your Business
Businesses with employees in Philadelphia should take the following steps to avoid liability under the new ordinance:
- Stay up to date on all state and local COVID-19 public health orders and ensure that you are following all required actions and procedures within;
- Create a COVID-19 policy that includes internal protocols of how to respond to an employee who complains of or refuses to work due to unsafe workplace conditions; and
- Train and educate managers and human resources personnel about this ordinance so that they understand your business’s obligations under the law.
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