The COVID-19 pandemic has unloosed a veritable flood of whistleblower retaliation claims that employees have filed with the Occupational Safety and Health Administration (OSHA), resulting in a growing backlog of cases.
Larry D. Turner, acting inspector general of the Department of Labor’s Office of Inspector General (OIG), has investigated the situation. That has led to recommendations on how to unsnarl the backlog while making sure these complaints are handled in the fair, thorough and careful manner expected when dealing with the health and safety of American workers.
“As COVID-19 illnesses and deaths continue to rise, OSHA needs to act quickly to investigate whistleblower complaints so employees feel protected when reporting unsafe working conditions,” the OIG’s report asserts.
The OIG made the following recommendations to OSHA:
- Fill the five open whistleblower investigator vacancies.
- Monitor, evaluate and consider extending a previously implemented pilot triage program to all regions.
- Expand a preexisting caseload management system that reassigned older whistleblower complaints from backlogged regions to other regions with spare capacity.
“The second and third recommendations reflect steps OSHA had already begun implementing,” say attorneys Steven Pearlman, Pinchos Goldberg and Scott Tan of the Proskauer Rose law firm. “The OIG found that prior to the COVID-19 pandemic, the whistleblower program had begun planning a triage program to respond more efficiently to increased numbers of whistleblower complaints.”
On May 1, the pilot triage program commenced in Region 2 (New Jersey, New York, Puerto Rico and the U.S. Virgin Islands). The triage program allows investigators to expedite the complaint screening process by closing procedurally barred complaints without first contacting the complainants for additional information.
The OIG also found that beginning early this year, the whistleblower program started reassigning complaints from regions experiencing a backlog of investigations to less busy regions but had yet to adopt this method more broadly for complaints made during the COVID-19 pandemic, the attorneys noted.
Loren Sweatt, deputy assistant secretary of OSHA, responded by informing the OIG that strengthening the whistleblower program continues to be one of OSHA’s top priorities and emphasizing her agreement with the OIG’s recommendations.
What Investigators Found
Issued mid-August, the OIG investigation report revealed that from Feb. 1 to May 31, the OSHA whistleblower program received a total of 4,101 complaints, a 30% increase from the same period in 2019.
During that same period, the OIG also found that 1,618 COVID-19-related whistleblower complaints were filed with OSHA, with numbers varying substantially across the 10 regions OSHA administers. Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin) saw 325 COVID-19-related complaints, the highest of any region. By contrast, Region 10 (Alaska, Idaho, Oregon and Washington) received only 61 COVID-19- related whistleblower complaints, the fewest of any region.
OIG investigators screened and administratively closed 858 of those 1,618 COVID-19-related complaints. After screening, 404 complaints were docketed, which begins the fact-gathering process by notifying concerned parties of OSHA’s intent to open a formal investigation.
Of the 404 docketed complaints, 62 were closed after the investigation concluded, leaving 342 COVID-19 whistleblower complaints open as of May 31.The OIG found that for COVID-19-related complaints, this screening process was completed in an average of seven days after the complaint was filed, three days faster than the average number of days it takes to administratively close non-COVID-19-related whistleblower complaints.
The increased caseload resulting from the number of complaints filed during the pandemic also caused delays. Based on OSHA’s own internal metrics, for the quarter ending on March 31, it took an average of 279 days to close an investigation, an increase of 41 days reported in a 2015 audit.
Most of the additional complaints were filed under the section of the Occupational Safety and Health Act that requires investigations to be completed within 90 days of the filing date, the Proskauer Rose attorneys noted.
The OIG attributed part of the increased delay to the reduction in whistleblower program employees, down from 126 in 2019 to 120 in 2020. OSHA requested 10 new whistleblower investigator positions in its fiscal year 2021 budget request to Congress. It only had 76 active investigators as of Feb. 28, with five investigator positions remaining open.
Between Feb. 1 and May 31, an average of 53 whistleblower complaints were received per investigator, compared with 41 during the same period in 2019. In Region 7 (Iowa, Kansas, Missouri and Nebraska), the average whistleblower complaints per investigator increased only by three, the lowest of any region. In contrast, Region 9 (Arizona, California, Hawaii, Nevada, Guam, American Samoa, and Northern Mariana Islands) experienced the largest increase of 21 additional whistleblower complaints per investigator.
“OSHA’s data shows that employers are indeed facing a deluge of health and safety whistleblower claims in the wake of the COVID-19 pandemic,” the Proskauer Rose attorneys conclude. “It is fair to assume that such claims will continue to be filed in substantial numbers. While OSHA may enhance its ability to handle the high volume of claims by expanding upon its existing efforts and following the OIG’s recommendations, it is likely that OSHA could still be stretched.”
The attorneys said one consequence may be that frustrated complainants may be more likely to seek relief in courts by asserting claims under various whistleblower statutes or by bringing common law retaliatory discharge claims. As a result, they say employers should take steps to minimize the risks attendant to health and safety whistleblower claims by following their suggestions for creating systems and policies for handling them. These include:
- Develop a plan detailing the steps employers are taking to protect employees’ health and safety during the pandemic.
- Update anti-retaliation policies to cover complaints concerning health and safety issues.
- Provide training about this to employees at all levels.
They also suggest providing a channel for complaints regarding health and safety issues, including anonymous complaints; documenting complaints in detail; and vetting the reasons behind any adverse employment actions against employees who have complained of health and safety violations.