OSHA Seeks Public Feedback On The Whistleblower Protection Program

Husch Blackwell LLP

On October 13, 2021, from 2:00 – 5:00 p.m. Eastern Time, the Occupational Safety and Health Administration (OSHA) will hold a virtual meeting (via telephone and Microsoft Teams) to receive public comments and suggestions regarding OSHA’s Whistleblower Protection Program.

Notably, the public meeting comes six weeks after OSHA announced a change in its interpretation of the whistleblower provision of the Occupational Safety and Health Act, encoded at 29 U.S.C. § 660(c)(1).

On September 03, 2021, based on U.S. Supreme Court decisions, OSHA amended its interpretation of the Act’s anti-retaliation provision to require that whistleblowers meet the “but for” standard to prove that their protected activity caused the adverse action. This supplants the previous interpretation that accepted the “substantial reason” test for causation, which was easier for claimants to satisfy.

Stakeholders who want to participate must register one week before the meeting, on Wednesday, October 6, 2021.  (This is also the deadline to submit written comments.)

To attend, select one of the following registration links, English or Spanish, to listen to the meeting in either language.

The upcoming meeting is the eighth in a series of meetings OSHA has held on improvements to the whistleblower program. Specifically, OSHA is seeking comments on:

  1. How can OSHA deliver better whistleblower customer service?
  2. What kind of assistance can OSHA provide to help explain the agency’s whistleblower laws to employees and employers?
  3. What can OSHA do to ensure that workers are protected from retaliation for raising concerns related to the pandemic?

It is unclear whether OSHA will be discussing how the adoption of the “but for” causation test will affect the agency’s whistleblower program.

Comments must be submitted electronically at http://www.regulations.gov, and should be identified with Docket No. OSHA-2018-0005.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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