Watchdog: OSHA Had Trouble Processing Whistleblower Complaints Efficiently Even Before Coronavirus Hit

The Occupational Safety and Health Administration needs to improve how it processes whistleblower complaints as it received an influx during the onset of the coronavirus pandemic, a watchdog reported on Tuesday.

The Labor Department inspector general outlined in a report that OSHA received 30% more whistleblower complaints from February 1 to May 31 compared to the same period in 2019. Of the 4,101 complaints, 1,618 (about 39%) were COVID-19 related. OSHA’s whistleblower program oversees 23 statutes that prohibit employees from retaliating against employees who raise concerns about workplace safety, environmental conditions, financial procedures or other issues across its 10 regions in the United States.  

“OSHA was challenged to complete investigations in a timely manner before the pandemic and the potential exists for even greater delays now,” said the report. “As COVID-19 illnesses and deaths continue to rise, OSHA needs to act quickly to investigate whistleblower complaints so employees feel protected when reporting unsafe working conditions.” 

Despite the vast uptick in cases from 2019 to 2020, OSHA’s full-time employment positions decreased from 126 to 120, the IG said. Seventy-six of 84 investigator positions are filled, one investigator is on military leave and two are being onboarded in the Kansas City and Denver regions, leaving five investigator vacancies. 

As a result of the staff decrease, there was an increase in cases assigned per investigator. “Depending on the region, the investigators reported that open investigations ranged from 15 to 40 in 2019, and 19 to 45 in 2020,” said the report. “Additionally, the investigators stated, in order to screen all the whistleblower complaints being received, they delayed conducting work on already open investigations.” The IG learned during its interviews that 20 open cases at a time is the ideal amount.  

As of March 31, it took an average of 279 days to complete an investigation, compared to 238 days in 2015 and 150 in 2010. Now with the pandemic and current staffing situation, “the potential exists for an even greater delay in the average days to close an investigation,” said the watchdog.

The report further shows “what workers across the country already know: their whistleblower complaints are not being investigated with any level of urgency due in part to understaffing,” said the nonprofit National Employment Law Project. 

The Labor Department and OSHA have taken steps to address some of these challenges, the IG noted. Before the pandemic, they commissioned a triage pilot program for Region II (which covers New Jersey, New York, Puerto Rico and the U.S. Virgin Islands) that allows investigators to send notification letters to complainants saying why a case was closed if they were deemed untimely or need to be referred to a state, as opposed to contacting the complainant for more details. The program, which began on May 1, is for complaints regarding health and safety violations as outlined in the 1970 Occupational Safety and Health Act. 

An IG spokesperson told Government Executive on Wednesday that staff didn’t find the pilot program was successful so far, but they will be doing more comprehensive reviews in the future.

OSHA has also been trying to reassign older cases from regions with larger backlogs to those with smaller ones. “However, whistleblower program officials have not utilized a similar approach during the COVID-19 pandemic to more evenly distribute whistleblower complaints,” said the report.  

The IG’s office––currently led in an acting capacity by deputy IG Larry Turner after IG Scott Dahl retired in June––conducted the audit by interviewing management officials; reviewing complaint data; and studying past audits, relevant news articles and legislation on the pandemic. As a result, it recommended that OSHA fill the five whistleblower investigator vacancies, continue to assess the triage pilot program and consider extending it to all regions, and establish a plan to better distribute cases among investigators. The agency concurred with the recommendations and outlined how it's working to resolve the issues. 

During the pandemic, complaints have been filed on behalf of U.S. Postal Service, Federal Bureau of Prisons and Defense Department employees. OSHA has come under fire for not creating a temporary emergency standard for the public health emergency, despite calls from lawmakers to do so, and from a former administrator accusing it of being “missing in action.” 

However, Labor Secretary Eugene Scalia asserted during a White House briefing in April: “We will not tolerate retaliation” for employees who raise concerns about safety conditions during the pandemic. He added that “OSHA will continue to work with workers and employers to keep workplaces safe, using all the tools available to us, including enforcement if needed.”