Whistleblower charges alleging workplace safety retaliation have surged dramatically during COVID-19. Approximately 30 percent more charges have been filed with federal OSHA over the same period last year, according to a recent audit from the U.S. Department of Labor Office of Inspector General. The charge rate in the states and territories with state OSHA-certified plans—about half the country—is believed to have similarly increased.
The volume of safety-related retaliation charges is likely to continue (and potentially increase) as employers and governments continue to grapple with stay-at-home and return-to-work orders and protocols, the approaching flu season, and as vaccine candidates draw closer to approval and distribution. With that in mind, there are concrete steps that employers can take to avoid adverse whistleblower complaint findings.
There are two varieties of whistleblower claims under the Occupational Safety and Health (OSH) Act. The first resembles equal employment opportunity-related retaliation charges that many employers may be familiar with and requires the following elements:
Protected activities include complaining about workplace safety conditions to an employer, filing a safety complaint with OSHA, or cooperating in an OSHA investigation.
Adverse actions include any action that might dissuade a reasonable worker from engaging in OSH Act-protected activity. They include termination, demotion, and suspension. Some courts have found that they include other, less obvious actions, such as an unfavorable job reference, a lateral transfer, or a change in work schedule.
The second kind of whistleblower claim is more uniquely related to workplace safety. It can occur when an employee refuses to work because he or she reasonably believes that engaging in the required work presents "a real danger of death or serious injury." Employees alleging this kind of whistleblower complaint face a higher burden and must prove that he or she:
A successful whistleblower retaliation claim can result in back wages, reinstatement of the employee, reimbursement of the employee for attorney and expert witness fees, and other remedies required by the court or agency.
If OSHA determines that the complaint has merit and a voluntary settlement cannot be reached, the Office of the Solicitor of Labor may choose to litigate the case on the whistleblower's behalf in federal district court. If OSHA determines the complaint lacks merit, OSHA will dismiss the complaint. The employee may seek appeal of the dismissal within OSHA by filing a request for review within 15 days of receiving the adverse decision.
If OSHA determines that the dismissal was improper, it can reopen the case. If OSHA determines that the dismissal was proper, that decision represents a final determination of the Secretary of Labor. The employee is not entitled to bring the employee’'s own civil lawsuit under the federal scheme (although private causes of action where the agency declines further action are possible in some state-plan jurisdictions).2
Many employers who have little or no experience with responding to employees' workplace safety concerns or dealing with OSHA inspections are at significant risk that such issues will arise because of heightened employee anxiety regarding COVID-19. The pandemic has rendered all workplaces with onsite employees (or customers) potentially hazardous. Accordingly, employers can and should take steps to reduce the likelihood of exposure to successful whistleblower claims:
1 The same considerations that apply to federal OSHA whistleblower charges generally apply to state OSHA-certified plan whistleblower charges.
2 Employers should note that civil lawsuits are nevertheless occurring against employers on the basis of COVID-19 workplace safety concerns, including lawsuits advancing "public nuisance" claims rooted in employers' allegedly deficient COVID-19 safety protocols.