OSHA Whistleblower Claims Jump Amid Virus, Watchdog Says

By Vin Gurrieri
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Law360 (August 18, 2020, 10:00 PM EDT) -- The Occupational Safety and Health Administration must do a better job of processing complaints alleging retaliation for reporting unsafe working conditions, especially as the coronavirus pandemic has caused whistleblower claims to spike, the Labor Department's internal watchdog said in a new report.

The audit by the U.S. Department of Labor Office of Inspector General, which was dated Aug. 14 and made public Tuesday, found that staffing shortages within OSHA's whistleblower protection program combined with virus-fueled increases in complaints have the potential to severely hinder the agency's ability to promptly investigate claims.

"We found the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving," the OIG said in its report, which was authored by Elliot P. Lewis, assistant inspector general for audit. "OSHA was challenged to complete investigations in a timely manner before the pandemic and the potential exists for even greater delays now. 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 said it undertook the audit as part of its so-called pandemic oversight response plan specifically to assess the impact that whistleblower complaints related to COVID-19 have had on OSHA and how the agency has responded to those complaints.

Lewis noted in his report that the pandemic has resulted in a 30% jump in whistleblower complaints during its first four months as compared to the same period in 2019, when it took in about 3,250 complaints.

Of the 4,100 whistleblower complaints OSHA received from February through May, the OIG noted that about 1,600 of them were related to COVID-19, such as claims that someone was retaliated against for claiming violations of guidelines regarding social distancing or personal protective equipment.

Moreover, each of OSHA's 10 regions saw year-over-year increases during that same four-month stretch in 2019, according to the OIG.

At the same time, OSHA has seen full-time staff in its whistleblower program drop by six since last year to 120, meaning the remaining investigators — who were already stretched thin — have had take on more work screening incoming complaints and investigating open cases, according to the report.

While the OIG noted that before the pandemic OSHA had implemented a pilot program in one of its regions to speed up its response to whistleblowers' allegations, the agency hasn't used the newer procedures more widely during the pandemic to better apportion workload among staff.

Those newer procedures included shifting older cases from busier regions to those with less of a backlog, according to the OIG's report.

The OIG offered three recommendations to OSHA as part of its report: filling a handful of vacant whistleblower investigator positions, considering an extension of its pre-pandemic pilot program nationwide to more efficiently screen complaints, and put together a "caseload management plan" that improves the agency's ability to evenly divide up investigations among its investigators.

Loren Sweatt, OSHA principal deputy assistant secretary, said in response that she agreed with each of the OIG's recommendations and pledged to make reinforcing the agency's whistleblower program "a priority."

"OSHA is constantly working to strengthen the [Whistleblower Protection Program], and has made significant progress since the OIG's previous audits of the program," Sweatt said in her response.

"As the data show[s], OSHA has already processed more than 50% of the COVID-19-related complaints, with an average screening time of 10 days, which is well below the agency's [fiscal year] 2020 operating plan performance of 13 days," she added. "In addition, OSHA continues to implement proven strategies to improve its efficiency and effectiveness, despite the added workload created by the pandemic."

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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