OSHA Seeking Input on Improvements to Whistleblower Program with a Focus on Healthcare Workers

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On May 18, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) will host a public online meeting to seek input and public comments about its Whistleblower Protection Program, specifically in relation to protecting healthcare workers. This is the ninth event in a series of meetings requesting public input on the program; previous meetings have both been generally seeking input on the Whistleblower Protection Program and centered around specific topics, like the protection of migrant workers.

OSHA’s Whistleblower Protection Program

OSHA’s Whistleblower Protection Program enforces 25 whistleblower statutes, conducts investigations, and issues decisions regarding whistleblowers. In February of 2021, the agency announced that it was to oversee whistleblower retaliation complaints filed under two additional laws, the Criminal Antitrust Anti-Retaliation Act and the Anti-Money Laundering Act.

In 2020, whistleblowers filed 3,448 retaliation complaints with OSHA’s Whistleblower Protection Program, a fiscal year record. According to prior WNN reporting, the bulk of the whistleblower complaints OSHA received in Fiscal Year 2020 were related to violations of the Occupational Safety and Health Act of 1970 (OSH Act). The number of whistleblower complaints received in 2020, the first year of the COVID-19 pandemic, was a 25% increase from Fiscal Year 2019.

On Labor Day 2021, the DOL Office of Public Affairs posted a blog post in which Jim Frederick, Acting Assistant Secretary of Labor for Occupational Safety and Health, emphasized OSHA’s commitment to improving whistleblower protections.

OSHA’s Whistleblower Protection Program came under scrutiny in a February 2022 article in Stateline, an initiative of The Pew Charitable Trusts. The article featured contractors and subcontractors at a partially completed Amazon warehouse in Fort Worth, Texas. The employees voiced their hesitancy to speak out about safety hazards: one contractor told Stateline that every person who raised concerns about safety was terminated “for holding up production.”

According to the article, “OSHA dismissed 54% of complaints and took legal actions in about 27%. Only 21 cases, less than 1%, were found to have merit, meaning the agency asked for the employee to be reinstated or paid for damages.” Additionally, Stateline highlights that while some states have laws that expand on the whistleblower protections OSHA offers, 24 other states (including Texas) do not have their own OSHA plans. Former OSHA Chief of Staff and Senior Policy Adviser during the Obama Administration Debbie Berkowitz said that “it is nearly impossible for federal officials to enforce worker safety and health laws.”

“Workers can only enforce their rights under the law by asking OSHA to inspect, and OSHA resources are so scarce that it would take 160 years to inspect every workplace under its jurisdiction just once,” Berkowitz said in the article.

Past Public Meetings

In previous public online meetings that OSHA hosted to solicit comments about its Whistleblower Program, participants ranged from whistleblowers to compliance officers to industry professionals. In the meeting held on October 13, 2020, several participants brought up COVID-19 and issues their industries were facing in light of the pandemic. Other contributors suggested that OSHA make available information about whistleblower laws and past whistleblower cases as resources for both managers and employees to use.

OSHA’s public meeting on October 13, 2021, focused primarily on the rights and protections of migrant workers. During the meeting, speakers provided an array of suggestions and comments regarding the Whistleblower Protection Program and the dangers migrant workers face when considering blowing the whistle or reporting concerns in the workplace. Several contributors talked about the threat of retaliation and deportation as a chance many migrant workers are unwilling to take to blow the whistle. “Additionally, some speakers mentioned that retaliation like termination and deportation have a dire effect on not only the worker but their families as well,” previous WNN reporting states. Many participants in the meeting also had suggestions for OSHA about increasing outreach and education about the whistleblower protections employees have. Numerous speakers expressed that the exact steps and processes to follow to blow the whistle are confusing, again emphasizing the importance of education.

Upcoming May 18 Public Meeting

The upcoming meeting will again welcome comments and suggestions from the public about OSHA’s Whistleblower Protection Program. The meeting, which is free to join, will begin at 1pm Eastern Standard Time, and participants can join via phone or Zoom. There will be Spanish language translation during the meeting, and individuals interested in attending the meeting need to register in English or Spanish by May 11. The meeting will focus on protecting healthcare workers and whistleblowers.

The news release states that OSHA is seeking comments on the following questions:

    “How can OSHA deliver better whistleblower customer service?
    What kind of assistance can OSHA provide to help explain the agency’s whistleblower laws to employees and employers?
    What can OSHA do to ensure that healthcare workers are protected from retaliation for raising concerns related to COVID-19?”

Individuals can also submit written comments for the meeting by May 11 at the Federal eRulemaking Portal.

Read the news release announcing the meeting here.

Read more employment/OSHA news on WNN.

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