Member Article

Whistleblower complaints to the Occupational Safety and Health Administration (OSHA) have continued to rise during the COVID-19 pandemic. Between February 18, 2020, and May 31, 2020, a total of 4,101 whistleblower complaints were filed,[1] which represented a 30% increase in complaints over the same period last year.[2] The OSHA Region (Region 5) that enforces whistleblower complaints in the Midwest (Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin), received more complaints than any other region in the country.[3]

Naturally, the increase in whistleblower complaints has stretched OSHA’s ability to investigate and has caused delays. Most of the complaints were administratively closed prior to investigation. However, when the complaints did require a formal investigation, for the quarter ending March 31, 2020, OSHA investigators needed an average of 279 days to close the investigation, which represented an increase of 41 days from a similar audit in 2015. Most of these complaints were filed under Section 11(c) of the Occupational Safety and Health Act, which requires investigations to be completed within 90 days of the filing date.

OSHA has taken steps to address the backlog in cases and improve efficiency.[4] However, a natural consequence of this delay is that whistleblowers may be more likely to seek relief in state and federal courts under various whistleblower statutes or bring common law retaliatory discharge claims. Accordingly, it is important that employers take affirmative steps to minimize potential risks from whistleblower claims, including, but not limited to:

1. Develop a Return-to-Work plan.[5] Any Infectious Disease Preparedness and Response Plan should address industry and locality specific COVID-19 contingencies, including how the employer addresses the need for employees to be absent or work remotely. It should also consider whether and to what extent the employer should alter operation levels in light of supply and demand changes;
2. Implement Basic Prevention Measures. This should include implementing hygiene and social distancing protocols;
3. Communicate with employees about workplace protections. OSHA has recommended that employers be flexible and non-punitive with leave policies to ensure sick employees do not come to work;
4. Update anti-retaliation policies to include complaints concerning health and safety issues;
5. Provide training to employees on the employer’s anti-retaliation policies;
6. Provide an outlet for internal complaints of health and safety issues, including the ability for employees to make anonymous complaints;
7. Accurately record instances of COVID-19 if after a reasonable investigation the employer determined it is work-related;[6] and
8. Carefully scrutinize any adverse employment actions against employees who have complained of health and safety violations.
   
   

OSHA’s ongoing enforcement directives provide employers with additional considerations as businesses return employees to the workplace. For specific questions about OSHA’s enforcement, employee matters during COVID-19, state and local COVID-19 requirements, or about managing workplace health and safety obligations, please contact your Dinsmore attorney.

[1] COVID-19 Response Summary, www.whistleblowers.gov/covid-19-data, United States Department of Labor, Occupational Safety and Health Administration (September 3, 2020).

[2] United States Department of Labor Office of the Inspector General, COVID-19: OSHA Needs to Improve Its Handling of Whistleblower Complaints During the Pandemic, https://www.oig.dol.gov/public/reports/oa/2020/19-20-010-10-105.pdf (August 14, 2020).

[3] Id.

[4] Id., Appendix B, Agency’s Response to the Report, dated August 10, 2020.

[5] Occupational Safety and Health Administration, Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf

[6] Jillings, Lee Anne and Kapust, Patrick; Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19 (May 19, 2020).