Nebraska Attorney General Doug Peterson announced last week that he would likely challenge proposed a OSHA rule requiring employers with more than 100 employees to require COVID vaccinations or testing.

I suspect this challenge may weaken protections for whistleblower employees who report their employers to OSHA for not following OSHA rules on COVID vaccination and testing. Here is the why and how I think state challenges to federal rules on vaccination and testing could undercut whistleblower protections in Nebraska.

OSHA is going to rely on whistleblowers to enforce the vaccine and testing rule due to understaffing. Typically an employee who makes a report to OSHA can’t file their own lawsuit against their employer if they are retaliated against for making the report.

But in Nebraska, employers have a right to sue their employers for conduct that violates state or federal law under Neb. Rev. Stat. 48-1114.

In a typical retaliation case an employee has to show that 1) they engaged in a protected activity 2) their employer took some adverse action against them and 3) there is a causal link between the protected activity and the adverse action

At least under current Nebraska law, employees just need to have an honest or good faith belief that their employers conduct violates the law to have their report of unlawful activity to be a protected activity.

The potential problem for Nebraska employees seeking protections for reporting their employers to OSHA for not following the vaccine rule, is that a state law challenge to the rule blurs the lines whether the conduct they are opposing is plausibly unlawful.

Employees don’t have protections for reporting what courts deems as bad acts that aren’t illegal. Furthermore, courts in Nebraska hold that they aren’t going to second guess personnel decisions barring some evidence of discriminatory intent under the employment at-will doctrine. So, not surprisingly, employers typically fight the issue of whether their employee was engaging in a protected activity at all. Courts will sometimes agree with employers on this argument

I believe an employee can still meet a good faith standard by arguing they were opposing conduct that is unlawful under federal law. But a state law challenge to a federal rule on COVID vaccination and testing could narrow an already narrow path to a successful retaliation case for a whistleblower in Nebraska.