There was a 30% increase in employee whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA) from February 1 through May 31 during the height of the Coronavirus pandemic, and 39% of those stemmed from employers being blamed for actions they took regarding the virus itself.
“With the continuation of the pandemic, it seems likely that OSHA will continue to receive more whistleblower complaints, especially complaints related to social distancing and use of personal protective equipment,” says attorney Lori Lange with the law firm of Peckar & Abramson.
The report, which was issued by the Office of Inspector General (OIG) of Department of Labor, the parent agency of OSHA, also found there was an increase in the time it took to investigate those complaints.
The OIG said this was largely because of a decrease in the number of OSHA full-time equivalent employment (FTEs), and it concluded that OSHA had been “challenged” to complete investigations in a timely manner before the pandemic began, and there also is a potential for greater delays as a result of the pandemic.
“While investigators ideally should have no more than 20 open investigations at one time, investigators reported 19-45 open investigations per investigator—an increase from the 15-40 open investigations reported in 2019,” Lange notes.
The OIG recommended that OSHA fill five current investigator vacancies, continue to monitor the triage pilot being used in Region II and consider expanding it to all regions, and develop a caseload management plan to more equitably distribute whistleblower complaints among its investigators.
The Region II triage pilot aims to expedite the screening process by allowing the investigator who determined that a complaint was untimely or needed to be referred to a state plan, to notify the complainant that the complaint was being closed without needing to contact the complainant for more information.
During the four-month period that was reviewed, the whistleblower program received 4,101 complaints; 1,618 complaints were COVID-19 related. During the same period in 2019, the program received 3,152 complaints. Region V (Chicago) had the most complaints (325), while Region X (Seattle) had the fewest complaints (61).
William Kang, an attorney with the law firm of Jackson Lewis, notes, “The report serves as a reminder to employers of just one of the many risks present in the current environment. While whistleblower investigations might take longer than usual for the time being, the OIG report has brought COVID-19 workplace safety to the forefront and employers can expect OSHA to treat whistleblower complaints seriously.”
Lange warned, “Employers should remain diligent to ensure that proper health and safety measures are implemented. Importantly, employers should ensure that whistleblowers are not retaliated against for speaking up. Employees subject to retaliation may be entitled to reinstatement, back pay, restored benefits and other remedies.”
This might be a good time for employers to refresh their knowledge of how OSHA conducts these whistleblower investigations.
OSHA’s Whistleblower Program also includes responsibility for the enforcement of 23 statutes which prohibit employers from retaliating against employees when they report employer violations of various workplace safety, consumer product, environmental, financial reform and securities laws.
Last year, the new Taxpayer First Act assigned OSHA responsibility for investigating retaliation complaints filed by employees who provide information regarding their employers’ alleged underpayment of taxes, violations of internal revenue laws, or any other violations of federal laws relating to tax fraud.