COVID-19, Enforcement and Inspection

Labor OIG Audits OSHA’s COVID-19 Whistleblower Enforcement

The Department of Labor Office of the Inspector General (OIG) released an audit report of the Occupational Safety and Health Administration’s (OSHA) handling of whistleblower complaints during the coronavirus disease 2019 (COVID-19) pandemic. The OIG recommended that OSHA fill staff vacancies in the Whistleblower Protection Program (WPP), continue a pilot triage program in its Region II office, and develop a caseload management plan to evenly distribute complaints among investigators.

OSHA Binder

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OSHA has seen a spike in whistleblower complaints since the COVID-19 pandemic was declared in March. COVID-19, a respiratory illness caused by the SARS-CoV-2 virus, currently is widespread in most U.S. communities and considered a workplace hazard. OSHA is responsible for investigating whistleblower complaints for 23 federal statutes, including the Occupational Safety and Health Act of 1970.

OSHA’s whistleblower program received 30% more complaints during the first 4 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 data from the agency’s Integrated Management Information System (IMIS). The program received 3,152 complaints during the same period in 2019.

Of the 4,101 complaints received between February 1 and May 31, 1,618 were COVID-19 whistleblower complaints. The Region V office in Chicago received 325 COVID-19 complaints, the Region IV office in Atlanta received 251, and the Region III office in Philadelphia received 197.

“The pandemic has raised concerns regarding the safety and health of the workforce, and the protections afforded to those who report potential workplace safety violations,” the OIG said in a letter to Principal Deputy Assistant Secretary Loren Sweatt.

“News articles have depicted alleged employer retaliation against employees who reported potential workplace safety violations during COVID-19, including social distancing and personal protective equipment violations.”

Whistleblower complaints were not handled in a timely manner, according to the OIG.

It took an average of 279 days to close an investigation in the first quarter of 2020—an increase of 41 days from the 238 days reported in a 2015 audit and an increase of 129 days from the 150 days reported in a 2010 audit.

The whistleblower program and the Labor Department’s Office of the Solicitor conducted a pilot triage screening process before the COVID-19 pandemic, assigning older whistleblower complaints from regions with large backlogs of investigations to regions with smaller backlogs. The program did not use a similar approach during the pandemic to evenly distribute whistleblower complaints, the OIG found.

Both the increase in complaints and a reduction in resources likely caused further delays.

The OIG suggested that OSHA fill five whistleblower investigator vacancies. Sweatt responded that the agency had approved the hiring of five alternative dispute resolution (ADR) coordinators.

The OIG also suggested extending the triage pilot program to rebalance whistleblower complaint investigations. Although investigations are assigned according to where alleged retaliation took place, most investigations are conducted remotely with telephone interviews and e-mailed supporting documentation. On July 20, the agency issued a new directive for pilot program procedures.

The OIG also recommended that OSHA develop a caseload management plan to evenly distribute cases among investigators. Sweatt responded that the agency would continue assessing regional workloads and reassign cases across regional boundaries until it achieves a reasonable balance of caseloads across regions.