The coronavirus pandemic has presented new challenges in every area of society, including in the workplace. One such challenge is how to ensure employee safety in the face of a disease that can be transmitted simply by being in close proximity to infected coworkers.
While the Centers for Disease Control and Prevention (CDC) recommends that employers notify employees if a coworker tests positive for COVID-19, there is currently no federal law that requires employers to do so.
In the past few months, the problem has compounded: hundreds of U.S. companies have prohibited workers from sharing information about COVID-19 cases or even raising concerns about the virus, according to workplace complaints filed with the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA).
Workers say that these “gag rules” include everything from demanding that employees stay quiet if they test positive for COVID-19, to banning employees from posting about a COVID-19 diagnosis on social media, to threatening to fire any workers who reveal that they have COVID-19. Teachers say they’re also getting gag orders from their school districts.
Because COVID-19 is such a new disease, there’s no precedent for determining whether an employer’s COVID-19 gag order is legal. And the First Amendment doesn’t give employees the constitutional right to say anything they want to at work.
But federal laws do protect employee speech related to safety concerns and working conditions. If your employer has instituted a COVID-19 gag order, these laws likely safeguard your right to speak up about COVID-19 to protect yourself and your coworkers.
Many people believe that the First Amendment to the U.S. Constitution imparts a blanket right to freedom of speech in all situations, but that’s not the case. The First Amendment prevents the government from restricting free speech. It doesn’t apply to private actors such as corporations, who generally have the right to limit what you can say at work.
If you work for the government, you have broader free speech protections than if you work for a private employer. But there are still limitations on what you can say. The First Amendment generally will protect your speech only if you satisfy a three part test:
If you are a government employee who speaks out about COVID-19 exposure in your workplace, and what you say is not related to your official job duties nor does it interfere with the government’s ability to deliver public services, then your speech is probably protected by the First Amendment. In this situation, your employer’s COVID-19 gag order would likely be considered illegal.
If you work for a private employer, the First Amendment can’t prevent your employer from firing you for something you say at work, as long as your employer’s reasoning is not discriminatory or otherwise unlawful.
While the First Amendment doesn’t guarantee freedom of speech to private employees, there are various federal and state laws that do protect workers’ speech in certain situations.
The NLRA is a federal labor law that regulates the relationship between employees, unions, and employers. It provides protection against unfair labor practices and gives private-sector employees the right to join together, with or without a union, to improve their wages and working conditions. The NLRA applies to all employers involved in interstate commerce, which generally means almost every company. Some groups are not covered by the NLRA, including:
The NLRA protects employee speech if the speech qualifies as “concerted activity.” Concerted activity is when employees speak or act to raise common issues concerning wages, hours, safety, or other working conditions. When employees communicate about or protest a common workplace problem, they are protected from employer retaliation.
Generally, concerted activity is only protected when it involves two or more employees. But a single employee may also engage in protected concerted activity if the employee is acting on behalf of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.
Examples of protected concerted activities include:
Your employer cannot lawfully discharge, discipline, or threaten you for engaging in concerted activity, nor can an employer coercively question you about protected concerted activity.
However, you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer's products or services without relating your complaints to any labor controversy.
It seems clear that employees who talk among themselves, in person or on social media, about workplace COVID-19 exposure are discussing working conditions for the purpose of mutual aid or protection. By the same token, workers who take their COVID-19 safety concerns to the media, or individual workers who speak up about shared employee concerns relating to COVID-19, are likely engaging in protected concerted activity under the NLRA.
Historically, the NLRB has upheld employees’ right to speak about workplace issues that are far less sweeping and potentially dangerous than a deadly global pandemic. It is thus unlikely that the NLRB or the courts would enforce employer gag orders that prevent workers from jointly speaking up about COVID-19 safety concerns.
The Occupational Safety and Health (OSH) Act is a federal law that requires employers to keep the workplace safe and free of recognized hazards. Many states have similar health and safety laws.
OSHA, the CDC, and state governments have issued guidelines on how to address COVID-19 safety in the workplace. Specifically, the CDC and some states have instituted guidelines or are in the process of passing laws that require employers to disclose COVID-19 exposure in the workplace.
In light of these efforts to inform workers of potential exposure, enforcing a COVID-19 gag order that does the opposite—by keeping exposure a secret—would arguably run contrary to the employer’s duty to maintain a safe workplace. It would also require employees to assume the risk of working in an unsafe environment. It seems unlikely that OSHA or the courts would be willing to make such a contradictory finding.
The Whistleblower Protection Act of 1989 is a federal law that protects government workers when they report employer activities that, among other things, violate the law or endanger the public health or welfare. Many state statutes protect private employees in similar situations.
In addition to the protections against retaliation provided by the NLRA and the OSH Act, whistleblower laws might also provide protection to employees who in good faith report employers’ COVID-19 gag rules.
Some employers claim that their gag rules are necessary to maintain employee confidentiality. But both employers and employees can share information about COVID-19 exposure in the workplace while still maintaining employee medical privacy (for example, by preserving the confidentiality of the employee’s name, specific symptoms, and other details of the employee’s condition). Indeed, this is what the CDC and some states recommend employers do. And employees can certainly share information about their own COVID-19 infection without running afoul of any privacy laws. No privacy law requires employers to “gag” workers when it comes to discussing safety issues that could potentially affect everyone in the workplace.
More importantly, the laws discussed above grant workers an affirmative right to communicate about workplace health and safety issues and working conditions. Courts and federal agencies will likely find that these laws apply to most workplace discussions about COVID-19 safety issues.
If your supervisor nonetheless tries to prevent you from speaking out about a COVID-19 diagnosis or about COVID-19 safety issues in general, you should notify your human resources department. You can also file a claim with the NLRB or OSHA, although both agencies currently have a backlog of COVID-19-related cases.
Freedom of speech in the workplace is a complex issue, which is further complicated by the many unknowns attendant to a global pandemic. If your employer attempts to retaliate against or fire you for sharing information about COVID-19, speak to an experienced employment law attorney to better understand the nuances of your particular case and evaluate possible remedies.