Employers are rightfully concerned about the possibility of their employees asserting claims related to COVID-19 against them. This employer alert will address potential claims asserted under the North Carolina Retaliatory Employment Discrimination Act (“REDA”).
Many employers might have never heard of REDA, much less received a complaint, even though it became North Carolina law in 1992.
Under REDA, employees, who in good faith engage in “protected activities” under the law, are not to be subject to retaliation by their employers. Protected activities include threatening to file or filing a complaint under eleven different North Carolina statutes. Most REDA complaints relate to workplace safety, wages and workers’ compensation. The Retaliatory Employment Discrimination Bureau (“REDB”) of the NC DOL is responsible for enforcing REDA and investigating complaints.
In a recent article (page 3) drafted by Harriet Hopkins of the REDB, Ms. Hopkins reported that almost fifty percent of the weekly calls to the REDB’s helpline have related to COVID-19.
Employee complaints under REDA based on COVID-19 will most likely relate to NC OSHA, which is one of the covered statutes. Both federal and state OSHA have requirements related to an employer’s duty to provide a safe work environment. The question then becomes, could an employee have a legitimate REDA claim if his or her employer fails to take recommended safety precautions related to COVID-19? As there is no precedent for claims related to a pandemic, the answer is “possibly” and will be fact determinative.
In the Article, Ms. Hopkins gives examples of recent COVID-19 related complaints received by the REDB and its opinions of same, which are as follows:
- 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 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.
The takeaway is that employers should follow COVID-19 related safety recommendations from federal and state agencies. In addition, employers should carefully consider employees’ requests and complaints related to COVID-19 and make sure that their responses are in compliance with applicable state and federal law. Poyner Spruill’s attorneys are glad to advise employers on these issues.