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...We analyzed OSHA's public data showing 1,744 COVID-19-related retaliation complaints filed by workers from the beginning of the pandemic through August 9th and found that only 348 complaints-just one in five-were docketed for investigation; and only 35 complaints-just two percent-were resolved in that period. Most of the complaints-54 percent-were dismissed or closed without investigation. Of the tiny number of resolved complaints, it is unclear whether any were settled in a manner beneficial to the workers. OSHA does not make those outcomes public or explain the settlements.
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OSHA's whistleblower protections also require that workers file a whistleblower complaint with OSHA within 30 days of the date of the retaliatory action (some states, including Kentucky, California, Connecticut, Hawaii, North Carolina, Oregon, and Virginia, allow a longer timeframe). The 30-day timeframe is far shorter than most recently enacted whistleblower statutes, including the Federal Railroad Safety Act, the Consumer Product Safety Improvement Act, the Surface Transportation and Assistance Act, the Seaman's Protection Act, SOC, the Dodd- Frank Wall Street Reform and the Consumer Protection Act, the Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act, all of which give complainants 180 days from the date of the adverse action to file a complaint with OSHA.
Further, under the OSHA law, the burden of proof is much more rigorous on a whistleblower complainant than in more recent statutes. These newer laws only require the complainant to show that their whistleblowing was a "contributing" factor to the employer's adverse action. OSHA's whistleblower provisions, however, require the complainant to show that the adverse action was "because" of the whistleblowing. Finally, OSHA's current whistleblower protections do not provide the agency authority to order immediate preliminary reinstatement of employees when the agency finds they suffered an illegal termination.
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