Preserving Pandemic Protections

Abstract

Though violations of workplace laws are typically viewed as private matters between employee and employer, such violations often transcend these private relationships and impact third parties and the broader society. As an important example, violations of workplace laws can impact public health, particularly during public health emergencies like the COVID-19 pandemic.

Empirical research has consistently shown that access to paid sick leave decreases transmission of infectious diseases. In the wake of the COVID-19 pandemic, Congress created a statutory entitlement to paid sick leave to help ease the economic burden on workers and prevent community spread of the novel coronavirus in the workplace and surrounding communities. However, workplace laws are only as strong as their protections against retaliation.

This Article critically assesses the retaliation provision Congress drafted as part of this legislation. That provision inadequately incorporates the holdings of previous cases in which the judiciary interpreted retaliation and whistleblowing provisions of other statutes. In so doing, Congress failed to provide the robust retaliation protections needed to support the underlying goal of the emergency entitlement. This Article proposes how the legislature can strengthen anti-retaliation statutory text to allow for the broadest interpretation possible in accordance with goals of the private enforcement scheme Congress created, particularly in times of national crisis.

Keywords: retaliation, anti-retaliation, workplace law, discrimination, anti-discrimination, statutory interpretation, Families First Coronavirus Response Act, Emergency Paid Sick Leave Act, Emergency Family and Medical Leave Expansion Act