Minnesota Increases Worker Protections as It Prepares for Workers Returning to Work in a Pandemic

Governor Walz issued Executive Order 20-54 (the “Order”) yesterday, entitled “Protecting Works from Unsafe Working Condition and Retaliation During the COVID-19 Peacetime Emergency.”  Although the Order was overshadowed by the several other significant announcements made yesterday, see Stay at Home Becomes Stay Safe as Minnesota Continues to Reopen its Economy, with 37,000 workers now heading back to work, it is crucial that employers understand that this Order provides workers with additional protections.

The Order formally recognizes that workers whose jobs place them in regular proximity to co-workers or require regular engagement with the public are at increased risk.  Due to that proximity, there is increased risk of transmitting the virus to others, including patients, clients, residents, family members, co-workers, and the public.  The Order also notes that workers have continued to raise concerns regarding the safety of their work environments during this time, and reports of unsafe work environments, discipline, and retaliation have been common.

As you already know, federal and state anti-discrimination laws, including the Minnesota Human Rights Act, require employers to reasonably accommodate qualified employees with disabilities, which may include employees with high-risk health conditions as determined by guidelines from the Centers for Disease Control and Prevention and the Minnesota Department of Health, if they are exposed to or contract COVID-19.  In addition, employers must comply with the provisions of Minn. Stat. § 44.4196 for purposes of any qualifying employee who has been subject to isolation or quarantine due to COVID-19.  The Governor’s Order, however, goes further and provides additional protections during the pendency of the state of the emergency.

Specifically, the Order provides that employers must not discriminate or retaliate in any way against any worker for the following reasons:

1. Communicating orally or in writing with management personnel about occupational safety or health matters related to COVID-19, including asking questions or expressing concerns.
2. Wearing gloves, a cloth face covering, eye protection, or other protective gear that the worker has personally procured and reasonably believes will protect them, their co-workers, or the public against COVID-19 during the course of their work.  The protective gear must not violate industry standards or existing employer policies related to health, safety, or decency.  Further, employers may require use of employer-provided protective gear that meets or exceeds protective gear procured by the employee.
3. Good-faith refusal to perform assigned tasks if the worker has asked the employer to correct a hazardous condition, but it remains uncorrected.  Under current law (Minn. Stat. § 182.652, subd. 11), workers may refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm.  The Order clarifies that this includes a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with an infectious agent such as COVID-19.  Workers may report these situations immediately to the Minnesota Department of Labor and Industry (“DLI”).
4. Because such worker has requested an inspection or exercised any other right under Minn. Stat. § 182.654, subd. 8 and 9.  These provisions permit workers to request that the DLI conduct an inspection of their workplace if they believe that a violation of a safety or health standard that threatens physical harm exists or that an imminent danger exists.

DLI has the authority to investigate complaints of alleged violations of any of the above provisions and can enforce these provisions using the procedures contained in Minn. Stat. § 182.669, including awarding back pay and compensatory damages.  While employees could potentially bring such claims directly under other statutory schemes, such as the Minnesota Whistleblower Act and the Minnesota Occupational Safety and Health Act, the Order makes clear that DLI has the authority to pursue them.

The Order also allows employees to collect unemployment where they (1) quit their jobs because the employer failed to correct an adverse work condition related to the pandemic as long as the condition would compel an average, reasonable worker to quit, and the worker has complained to the employer about this condition and has given the employer a reasonable opportunity to correct this condition, to no avail; or (2) have been terminated for exercising their rights described above.  Under the Order, these employees will not lose unemployment insurance benefits eligibility under existing law and Executive Order 20-05, which we analyzed at Staying Connected with Your Client: Temporary Hours Reductions and the Minnesota Shared Work Program.

The Order also directs the Commissioner of Human Rights to issue guidance consistent with federal and state anti-discrimination laws regarding employers’ obligations to provide reasonable accommodations related to COVID‑19 for qualified employees with disabilities.  Finally, the Order expressly applies to all workers regardless of immigration status.

For additional guidance about Governor Walz’s most recent Order or other employment-related questions, contact your Stoel Rives attorney.