OSHA Commits To Improve Complaint Processing

The dramatic increase in whistleblower complaints flowing into the Occupational Safety and Health Administration (OSHA) offices should not come as a surprise to anyone. Since the beginning of the COVID-19 pandemic in the United States, through August 13, 2020, the Occupational Safety and Health Administration (OSHA) has received 8,054 complaints, with 1,070 referrals for follow-up. State OSHA plans received  22,585 complaints with 1,812 referrals for follow-up.

In a report to OSHA by the Office of Inspector General, COVID-19: OSHA Needs to Improve Its Handling of Whistleblower Complaints During the Pandemic (issued on August 14, 2020), this represents a 30 percent increase in complaints over the same period last year. The same report indicates that 39 percent of all whistleblower complaints are COVID-19 related.

Complexities and delays

Last fall, I wrote about the complexities of whistleblower protection law and the growing investigation backlog at OSHA. If follow-up investigations were lagging then, it is not surprising to learn that the delays have become amplified with the onset of the COVID-19 pandemic. The OSHA investigators who were interviewed by the Inspector General’s office for the report said that optimally, each investigator has no more than 20 open cases. After the pandemic hit, the number swelled quickly to 40+ open cases in some regional offices.

OSHA’s response

OSHA agrees with the recommendations made in the report, and says they’ll be doing several things to rectify the situation, including filling five vacancies in offices that handle whistleblower complaints and implementing “proven strategies to improve its efficiency and effectiveness.”

One of the “proven strategies” referred to here is the triage approach to expedite complaint screening by reassigning complaints from regions with large backlogs to regions with fewer open cases. It is somewhat puzzling that this strategy, which was piloted pre-pandemic, hasn’t been implemented until now.

What does this mean for employers?

One of the key things that the Inspector General’s report incorporates in its concluding paragraphs is OSHA’s commitment to fixing the problem. Labor Secretary Eugene Scalia has also gone on record saying, at the White House briefing in April, that “we will not tolerate retaliation” for employees who raise concerns about safety conditions during the pandemic.

Employers need to be aware that complaint processing will improve — and while it’s true that a large number of whistleblower complaints are closed after an administrative screening, many will proceed to the investigation stage. Should OSHA notify you that a complaint has been filed, it means the complaint has passed the first administrative hurdle at OSHA and moved to the investigation phase. You, the employer, must now respond and explain your side of the story.

How you respond — the quality and completeness of your response — is critical, and will make a big difference in how the investigation proceeds. Legal support in structuring and writing this response is recommended.

Should you receive notification from OSHA about a complaint — or if you have questions about your internal management system for handling employee complaints —  please don’t hesitate to contact me.

About the Author: James Laboe

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