OSHA overwhelmed by pandemic-related whistleblower complaints

In an April 8, 2020 news release, OSHA reminded employers “it is illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic.” Examples of retaliation include “terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.”

Pursuant to Section 11(c) of the Occupational Safety & Health Act of 1970, workers have the right to file whistleblower complaints with OSHA if they believe their employers have retaliated against them for reporting violations of various workplace safety and health laws. Allowable remedies are back pay, compensatory damages and punitive damages. Complaints must be filed within 30 days of the alleged retaliation. Upon receipt, OSHA will review the complaint and, if appropriate, will conduct a fact-finding investigation pursuant to requirements in 29 CFR Part 1977. Although Section 11(c)(3) provides that the Secretary of Labor is to “notify a complainant within 90 days of the complaint of his determination whether prohibited discrimination has occurred,” the “90-day provision is considered directory in nature.”

In practice, OSHA is understaffed and overloaded, causing delays in investigating whistleblower complaints. On August 14, the U.S. Department of Labor’s Office of Inspector General (OIG) issued an audit report titled, “COVID-19: OSHA Needs to Improve Its Handling of Whistleblower Complaints During the Pandemic.” According to investigators interviewed by OIG, the optimal caseload is no more than 20 open investigations at once per investigator. Although it varies by region, the range of open investigations per investigator has increased from 15 to 40 in 2019 to 19 to 45 in 2020. Ultimately, there is a potential for greater delays, which are an issue because “it could leave workers to suffer emotionally and financially, and may also lead to the erosion of key evidence and witnesses.”

One example has made recent headlines. A news outlet reported OSHA never having visited a Missouri poultry facility after COVID-19 complaints. A whistleblower filed a complaint on April 27. After the employer provided a written response and photographs, OSHA closed the investigation on May 13. Nearly two months after the complaint, 371 workers tested positive for COVID-19 in June.

In California, Cal/OSHA is also experiencing inspector vacancies and an influx of pandemic-related workplace safety complaints. According to a spokesperson, Cal/OSHA has responded to more than 3,200 complaints out of a total of 3,871, as of mid-July. Given the current circumstances, the lion’s share of inspections has been conducted via phone and letter. Another agency spokesperson stated phone and correspondence investigations allow the agency to reach out to employers without having to do an on-site visit, which are “technical, complex and time-consuming.”

It remains to be seen how successfully OSHA can triage the backlog of uninvestigated complaints. In response to OIG’s audit report, OSHA indicated its intent to fill whistleblower investigator vacancies and to re-balance whistleblower investigator workloads across the regions. On July 20, 2020, OSHA also issued its first directive (CPL 02-03-010) to develop, monitor, and evaluate policies and procedures for whistleblower protection pilot programs.

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