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Posted May 15th, 2020 in Top Stories, Legal Insights with Tags , ,

Minnesota Employers: Understanding Recent Anti-Retaliation Executive Order

This week, Minnesota Governor Tim Walz signed Emergency Executive Order 20-54 (“EO 20-54”), addressing the need for employers to protect all workers, regardless of immigration status, from unsafe work conditions during the COVID-19 pandemic. Specifically, EO 20-54 prohibits employers from retaliating or discriminating against workers who voice safety and health concerns related to COVID-19. The Governor’s order reiterates various pre-existing non-discrimination and anti-retaliation provisions in state and federal OSHA (Occupational Safety and Health Act) regulations, as well as guidance under the Minnesota Human Rights Act. For employers, understanding the details of this order is particularly important as Minnesota begins to reopen its economy and workers return to work.

Non-discrimination and Anti-retaliation

The Governor’s order points to state and federal OSHA provisions and declares that COVID-19 related concerns are within the scope of OSHA’s regulations. Under EO 20-54, employers are prohibited from “discriminat[ing] or retaliat[ing] in any way against a worker communicating orally or in writing to management personnel about occupational safety or health matters related to COVID-19, including asking questions or expressing concerns.” This prohibition is consistent with previous OSHA-related guidance from the Minnesota Department of Labor and Industry (DLI), supporting the idea that EO 20-54 can be analyzed based upon OSHA principles.

Additionally, employers are prohibited from retaliating or discriminating against workers who wear their own protective gear, such as gloves, cloth face coverings, or eye protection—as long as the protective gear does not violate industry standards or employer policies. However, employers may still require workers to use employer-provided PPE (personal protective equipment) that either meets or exceeds the worker’s protective gear.

The Governor’s order also mirrors OSHA’s protection against discrimination or retaliation where workers “refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm.” Notably, a worker’s “good faith refusal to perform assigned tasks [is only justified] if the worker has asked the employer to correct the hazardous conditions but they remain uncorrected.” Concerned workers may request that the DLI conduct an inspection of their workplace under these circumstances.

Although EO 20-54 does not address employer defenses to discrimination and retaliation claims, the multiple references to OSHA rules and regulations throughout suggests that ordinary OSHA defenses—such as impossibility of compliance—should be available. OSHA approaches workplace safety (at least in the age of COVID-19) with a balancing test, recognizing that some jobs involve greater risk of exposure than others, and then applying standards based on the level of risk. Employers should therefore be entitled to require workers to report to work even when some level of risk is present, so long as the employers make a good faith effort to comply with applicable OSHA standards.

 Unemployment Insurance Benefits

Workers who are terminated after engaging in OSHA-related protected activity or who quit after an employer fails to correct “an adverse work condition related to the pandemic which would compel an average, reasonable worker to quit” are eligible for unemployment compensation benefits. To be eligible, workers must first give the employer “a reasonable opportunity to correct such adverse work condition, to no avail.” Adverse work conditions include:

  • An employer’s failure to develop and implement a COVID-19 Preparedness Plan, as required by Governor Walz’s prior Executive Orders; and
  • Failure to adequately implement Minnesota OSHA Standards or Minnesota Department of Health and CDC Guidelines in the workplace related to COVID-19.

Presumably, an employer who takes protective measures as directed under OSHA Standards or MDH or CDC Guidelines will not be found in violation of the above anti-retaliation or non-discrimination provisions.

Reasonable Accommodations

The Governor’s order authorizes and directs the Commissioner of Human Rights to issue guidance consistent with state and federal anti-discrimination laws regarding an employer’s obligations to provide reasonable accommodations to qualified workers with disabilities related to COVID-19. This includes, among other things, adjusting schedules or workstations, allowing employees to work from home, or permitting the use of leave. This provision does not appear to create new substantive rights but merely confirms that the Americans with Disabilities Act and MHRA reasonable-accommodation and interactive-process rules continue to apply with respect to COVID-19.

As with all COVID-19 related issues, the topics addressed in EO 20-54 are subject to interpretation, and government agencies frequently provide guidance that advances our understanding. NJL will continue to monitor developments related to EO 20-54 and other aspects of employment law in the COVID-19 era, and it advises employers to do so as well.

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