New Virginia Law Protects Those Who Request COVID-19 Protection

By: John C. Cook

A new Virginia law, the Whistleblower Protection Act, protects Virginia employees from retaliation if they communicate their concerns about compliance with COVID-19 safety protocols to their employer. We previously covered an overview of this new law when it went into effect here.

The Coronavirus is ravaging our society. Right now, many workers are safe because they are working from home. However, as more and more employees return to the physical workplace, many are concerned that their employers are not following laws and regulations designed for their safety and to prevent the community spread of the virus. Employees may be reluctant to express their concerns, however, for fear of retaliation, including termination. That is where the Virginia Whistleblower Protection Act comes into play. This new law protects employees and offers a powerful cause of action for injunctive relief, damages, and attorneys’ fees for those who bring claims successfully. This law provides employees with a cause of action if they are fired, disciplined, threatened, discriminated against, or penalized because they “report in good faith a violation of any federal or state law or regulation to a supervisor …”

So, let’s take apart the pieces.

First, the law protects those who report “violations of law.” This is where employees need to be careful. The Governor’s Executive Order declaring a state of emergency and implementing various measures is a law. The new COVID-19 Virginia Emergency Temporary Workplace Standard, which requires employers to assess and document workplace hazards for COVID-19 spread and protection, is a regulation. Both give whistleblower protection. But, “guidelines” issued by the Center for Disease Control (CDC) are not law. They are “guidance,” meaning they are recommended by governmental experts but not required by law. On the other hand, to the extent the Governor’s Order requires adherence to certain CDC guidelines, those guidelines would then carry the force of law. Confusing? Of course it is. The law is written by lawyers, for lawyers.

Some things are fairly clear. The requirement to wear a mask in public areas of a business, or when people in a business cannot maintain social distancing, is the type of “guidance” that has been incorporated into law. The requirement to allow employees to telework “when practical” is another principle that probably leads to whistleblower protection. Certainly, the paid leave benefits under the Families First Coronavirus Relief Act (FFCRA) are law. Employees who bring these matters to the attention of their employer, and are terminated or otherwise retaliated against, may have a legal cause of action against their employer.

So, the message is, be safe. Advocate for safety in your workplace. And, if your advocacy for safety leads to retaliation, see a lawyer.

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