COVID-19 Issues Driving Increased OSHA Whistleblower Activity

1.  Introduction

In fiscal 2020 (ending September 30, 2020), the number of Occupational Safety and Health Act whist blower claims filed with the agency increased a whopping 25%.  The increase was largely driven by employee anxiety related to COVID-19 precautions and protocols, and perceived exposure to COVID-19 hazards. As many employers pull back  masking and distancing precautions to which employees have become accustomed, we anticipate increased safety complaints to OSHA and many new whistleblower complaints.

As of 2021, OSHA investigates employee complaints brought under 25 separate statutes.  About 73% of these claims are filed under Section 11(c) of the Occupational Safety and Health Act itself.  Other whistleblower statutes address industries such as aviation, trucking, heavy equipment, railroads, pipelines, and barges.  OSHA operates a dual structure, with (a) compliance safety and health officers investigating complaints and issuing safety and health citations and (b) employment investigators receiving and investigating a growing number of whistleblower statutes. 

2.  Elements of Prima Facie Case of Retaliation

The federal whistleblower statutes protect employees who have filed complaints with federal agencies, participated in federal investigations, or even filed internal safety complaints.  These employees then allege that their employer issued them an adverse or negative employment action, such as a discharge or suspension, on account of the alleged protected activity.  Accordingly, a prima facie case of employment retaliation generally requires the complainant to prove (1) protected activity, (2) an adverse employment action, and (3) a causal connection between the protected activity and the retaliation.  The employer can then rebut the prima facie case with a legitimate non-discriminatory reason for the adverse action.  The complainant then needs to show that reason for the adverse employment action was a pretext, meaning a false reason.

3.  Investigatory Process of an OSHA 11(c) Complaint

Employers who receive a whistleblower complaint will face a potentially disruptive and years-long investigation and enforcement process, regardless of the merits of the complaint.  After receiving a complaint from a complaining employee, the OSHA retaliation investigator will first send a letter to the employer outlining that a complaint has been filed and providing a written summary of the online complaint or written transcription of a telephonic complaint.  The letter will request a response letter to be filed within 20 days of the date of the letter.  However, the Agency is almost always amendable to reasonable extensions of time.  Employers should strive to be truthful, complete, and persuasive in their response to the Agency — employers may need to engage outside counsel and take more than 20 days to do a competent investigation and draft a persuasive response. 

After receiving the employer’s response letter, OSHA will forward the letter to the complainant and ask for a response.  Many complainants do not respond to OSHA’s follow-up inquiry, and the complaint will be summarily dismissed.  In other cases, OSHA investigators read the response letter and convince complainants to voluntarily dismiss meritless complaints. Because of the backlog and limited resources to investigate and try retaliation cases, OSHA will make an effort to negotiate settlements with complainants. If the case proceeds, OSHA will conduct an investigation, request additional documents, and interview witnesses. Due to a large backlog in retaliation complaints, employers may not hear from OSHA for 18 months or more after filing their response letter.  OSHA dismisses more than 95% of complaints.  There is no private cause of action for employees to bring a claim under OSHA Section 11(c); OSHA’s attorney, the Solicitor of Labor, would bring any litigation in United States District Court. 

4.  OSHA’s Desk Aid of OSHA Section 11(c)

In 2019, OSHA released an updated Investigator’s Desk Aid to the Occupational Safety and Health Act (OSH Act) Whistleblower Protection Provision, intended as the Agency’s “summary of the scope of coverage and protected activity and procedures for handling investigations under Section 11(c) of the Occupational Safety and Health Act (OSH Act).”  The desk aid is notable, as it reflects OSHA’s views on numerous hot-button issues surrounding whistleblower complaints.

5.  Forms of Protected Activity Presented in the Desk Aid

OSHA’s desk aid provides a checklist for retaliation investigators and concentrates on the various forms of protected activity under Section 11(c):

A.  Filing occupational safety or health complaints with OSHA or other agencies;

B.  Filing occupational safety or health complaints with management;

C.  Instituting or causing to be instituted any proceeding under or related to the OSH Act;

D.  Providing testimony relating to occupational safety or health;

E.  Exercising any right afforded by the OSH Act;

F.  Refusing to perform a dangerous assigned task under certain circumstances;

G.  Complying with and obtaining benefits of OSHA standards and regulations;

H.  Participating in an OSHA inspection;

I.  Requesting information from OSHA; or

J.  Refusing to inform an employer of the identity of the person who complained to or contacted OSHA.

The broad, catch-all form of protected activity is (E) “Exercising any right afforded by the OSH Act.”  OSHA understands this to include reporting an injury, requesting a safety data sheet (SDS), and communicating about safety and health issues included as part of the employee’s duties.  Without citation to a recognized statutory section, OSHA takes the position that communication about health and safety matters with “co-workers” is protected activity.  This means that an employee could file an OSHA claim premised only on complaints made to co-workers, of which no supervisor or manager was made aware.  This is not a right “afforded by the OSH Act,” and is contrary to the requirement of employer knowledge necessary for alleged intentional retaliation and we believe this interpretation is not legally supported.

6.  Refusal to Perform

OSHA’s desk aid importantly addresses whistleblower claims founded on an employer’s action against an employee who refuses to perform his job on account of an alleged safety concern.  An employee’s right to refuse to perform is a limited and specific — it must be founded on an objectively reasonable belief that the action the employee refuses to perform represents a safety hazard.   The Desk Aid further articulates necessary elements laid out in 29 C.F.R. § 1977.12(b)(2): “An employee has the right to refuse to perform an assigned task if he or she:

1.  Has a reasonable apprehension of death or serious injury, and
2.  Refuses in good faith, and
3.  Has no reasonable alternative, and
4.  Has insufficient time to eliminate the condition through regular statutory enforcement channels, i.e., contacting OSHA or a State OSHA, and
5.  Where possible, sought from his or her employer, and was unable to obtain, a correction of the dangerous condition.

All elements listed above must be satisfied.”  In practice, very few employees who refuse to perform satisfy each of these elements and do not have the basis for a whistleblower claim.  A generalized fear of COVID-19 and refusal to perform work rarely qualifies as protected activity.

7.  Right to File Complaint or Participate in OSHA Investigations

The Agency rightly includes in its list of protected activities the employee’s rights to file complaints and to participate in OSHA inspections, typically through on-site interviews.  Employees have a right to file complaints and for this reason, the Company management should not investigate who filed the complaint that led to the inspection and should not make comments that give an appearance of impropriety with regard to an OSHA complainant.  In preparation for an interview during an OSHA inspection, employees should be reminded during preparation of their right to communicate with OSHA and that no negative outcome will occur as a result of their interview. 

8.  Takeaways

Much like other employment claims, OSHA retaliation claims are normally brought by employees and former employees disgruntled by an adverse employment action.  To minimize OSHA retaliation liability, as with all other employment claims, employers must address and confront an employee’s grounds to allege pretexts.  To do so, employers should document the bases for a discipline or discharge decision.  If faced with retaliation complaints, employers should consider promptly contacting counsel to prepare a response to properly assert their defenses.