The Department of Labor (DOL) Office of Inspector General (OIG) recently issued an audit report on OSHA’s handling of whistleblower complaints during the COVID-19 pandemic.  The audit was performed due to concerns about the health and safety of workers and whether workers who reported potential workplace safety violations, such as lack of social distancing or personal protective equipment, were protected from retaliation.  Employees who believe they have been subject to retaliation can file a complaint with the Whistleblower Program.

Not unexpectedly, the audit found an increase in the number of complaints and an increase in the time to investigate those complaints.  Specifically, the audit found that OSHA’s Whistleblower Program received 30% more complaints during the first four months of the COVID-19 pandemic than during the same period in 2019.  From February 1, 2020 through May 31, 2020, the Whistleblower Program received 4,101 complaints; 1,618 complaints were COVID-19 related.  During the same period in 2019, the Whistleblower Program received 3,152 complaints.  Region V (Chicago) had the most complaints (325) while Region X (Seattle) had the fewest complaints (61).  Below is a graphic on the complaints by region contained in the audit report.

The number of days to close an investigation also increased. The report found that this was due, at least in part, to a decrease in the number of OSHA full-time equivalent employment (FTEs). The report concluded that OSHA was “challenged” to complete investigations in a timely manner before the pandemic and there is a potential for greater delays as a result of the pandemic. While investigators ideally should have no more than 20 open investigations at one time, investigators reported 19-45 open investigations per investigator – an increase from the 15-40 open investigations reported in 2019.

The DOL OIG recommended that OSHA fill five current investigator vacancies, continue to monitor the triage pilot being used in Region II and consider expanding it to all regions, and develop a caseload management plan to more equitably distribute whistleblower complaints amongst investigators.  The Region II triage pilot is intended to expedite the screening process by allowing the investigator who determined that a complaint was untimely or needed to be referred to a state plan to notify the complainant that the complaint was being closed without requiring the investigator to contact the complainant for more information.

With the continuation of the pandemic, it seems likely that OSHA will continue to receive more whistleblower complaints, especially complaints related to social distancing and use of personal protective equipment.  Employers should remain diligent to ensure that proper health and safety measures are implemented.  Importantly, employers should ensure that whistleblowers are not retaliated against for speaking up.  Employees subject to retaliation may be entitled to reinstatement, back pay, restored benefits, and other remedies.

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