Wednesday, August 19, 2020

Coronavirus Update 8-19-2020: Government watchdog says OSHA whistleblower claims up, investigations down during pandemic

According to a report released yesterday by the Office of Inspector General, since the start of the COVID-19 pandemic, OSHA has been flooded with complaints by employees that their employers retaliated against them for making virus-related complaints. Yet, because of staffing shortages within OSHA's whistleblower protection program, the agency has been severely hampered in its ability to promptly investigate claims, resulting in significant investigatory delays.

The IG report concludes:

The pandemic has raised concerns regarding the safety and health of the workforce, and the protections afforded to those who report potential workplace safety violations. News articles have depicted alleged employer retaliation against employees who reported potential workplace safety violations during COVID-19, including social distancing and personal protective equipment violations. Employees who believe they have been subject to retaliation may file a complaint with the Whistleblower Program. … 

The pandemic has significantly increased the number of whistleblower complaints OSHA has received, and at the same time, the Whistleblower Program’s full-time equivalent employment (FTE) has decreased. Based on interviews with investigators and a regional supervisory investigator, no more than 20 open investigations at one time would be the optimal caseload per investigator. Depending on the region, the investigators reported that open investigations ranged from 15 to 40 in 2019, but 19 to 45 in 2020. As a result, the potential exists for an even greater delay in the average days to close an investigation. Amid this challenge, OSHA needs to improve its handling of whistleblower complaints during the COVID-19 pandemic. 

When OSHA fails to respond in a timely manner, it could leave workers to suffer emotionally and financially. Failure to investigate a whistleblower complaint promptly may also lead to the erosion of key evidence and witnesses. 

Indeed, from February 1 through May 31, 2002, OSHA's received 4,101 complaints, a 30 percent increase over the same period in 2019. (Region V, which covers Ohio, experienced a larger 47 percent jump.) Just under 40 percent, or 1,618 of those complaints, related to COVID-19 concerns. 

This is huge problem. If more complaints are being filed that take longer to investigate and therefore adjudicate or resolve, OSHA is leaving myriad employees without the protections they need to raise concerns about their safety at work.

For its part, OSHA, speaking through its Principal Deputy Assistant Secretary, Loren Sweatt, agrees with each IG's recommendations to address the problem, including filling vacancies to handle whistleblower complaints and developing a detailed caseload management plan. She adds the strengthening OSHA's Whistleblower Protection Program is one the agency's "top priorities."

Protecting whistleblowers from retaliation should also be one of your top priorities as an employer. Whistleblower retaliation is one of the biggest legal risks facing employers during this pandemic. In addition to OSHA, the National Labor Relations Act and myriad state laws protect employees from retaliation for raising health and safety concerns at work. 

Instead of risking a lawsuit by removing a "whining" or "difficult" employee from the workplace, employers should view their complaints as an opportunity to improve. Why are they raising issues? How do they feel unsafe? What can we do to improve and make all employees feel safer? If we are doing everything we can to provide as safe of a workplace as possible, how do we communicate that fact to employees?

Far from an opportunity to terminate, employee health and safety complaints (always, but especially during this pandemic) present an opportunity to listen, improve, and strengthen your relationship with your employees. Employers that do not understand this opportunity risk dangerous and costly retaliation claims (even if OSHA isn't reacting as quickly as it should be.)