The U.S. Occupational Safety and Health Administration is failing to protect workers who report retaliation for speaking up about COVID-19 risks in the workplace, according to an October report from worker safety advocates.
Released by the National Employment Law Project, the report is based on nearly 1,750 coronavirus-related retaliation complaints filed with the federal agency since the beginning of the pandemic through early August. Overall, researchers found that just 348 complaints — or 1 in every 5 — were formally tapped for investigation and just 35 retaliation complaints were resolved. The majority of complaints — 54% — were dismissed or closed without investigation. Among the retaliation complaints that did get resolved, the outcomes are unclear, as OSHA does not make that information public.
Complaints involved retaliation against workers for speaking up about preventable workplace COVID-19 risks, such as lax face mask enforcement. Under the Trump administration, OSHA refused to issue emergency worker safety rules on COVID-19 exposure, though some states, such as Virginia and California, have done so on their own.
“Resolving a mere 2% of OSHA retaliation complaints in six months is a dismal record under any circumstances,” the report said. “It undermines workers’ confidence that they’ll be protected when reporting unsafe working conditions.”
Debbie Berkowitz, director of the project’s Worker Safety and Health Program, said the report is meant to follow up on promises made by federal labor officials that they would protect whistleblowers who spoke up about dangerous COVID-19 exposures. For example, in April, Loren Sweatt, principal deputy assistant secretary of labor for occupational safety and health, said in an OSHA news release that employees “have the right to safe and healthy workplaces. Any worker who believes that their employer is retaliating against them for reporting unsafe working conditions should contact OSHA immediately.”
Worker safety advocates such as Berkowitz, an APHA member, said OSHA’s track record so far shows the agency is not upholding its word.
“In this pandemic, because OSHA failed to implement a specific standard for workers, workers are on their own to fight for protections,” Berkowitz told The Nation’s Health. “And if they get retaliated against, (OSHA) said it would protect them. But (the Trump) administration is completely failing to have their backs.”
In August, a report from the U.S. Department of Labor’s Office of Inspector General also called out OSHA’s whistleblower program, reporting that while the pandemic has greatly increased whistleblower retaliation complaints filed with OSHA, the program’s enforcement staff has decreased.
“Amid this challenge, OSHA needs to improve its handling of whistleblower complaints,” according to the inspector general report. “When OSHA fails to respond in a timely manner, it could leave workers to suffer emotionally and financially, and may also lead to the erosion of key evidence and witnesses.”
The National Employment Law Project report offered a number of recommendations to improve whistleblower protection, including increasing funding for whistleblower investigators, extending the time frame for filing complaints, and giving workers a “private right to action” so they may take their retaliation complaints to court.
Under current rules, if a worker files a retaliation complaint with OSHA and the agency dismisses it, they cannot take personal legal action against an employer under OSHA law.
“It’s really important to understand that if a worker files a retaliation complaint with OSHA, there’s no appeal, no private right to action,” said Berkowitz, who worked as an OSHA official under the Obama administration. “When OSHA fails to act, workers are on their own.”
For more information on the report, “OSHA Must Protect COVID Whistleblowers Who File Retaliation Complaints,” visit www.nelp.org.
- Copyright The Nation’s Health, American Public Health Association
