Reform the Occupational Safety and Health Act

By creating this Act, Congress recognized the need for protecting whistleblowers, but over time these protections have proven to be inadequate.

As Covid-19 continues to sweep across the United States, thousands of health and safety workers, as well as other essential personnel, have reported unsafe working conditions under the Occupational Safety and Health Act (OSHA), a law aimed at ensuring a safe work environment for all workers within the United States.

By creating this Act, Congress recognized the need for protecting whistleblowers, but over time these protections have proven to be inadequate. Today, workers must choose between losing their job or becoming sick from Covid-19. Those that do come forward have just one reporting channel – one that has failed to ensure complaints are heard, and retaliation is prevented.

Currently, workers are unable to file their cases in court. They must report their claim to the Department of Labor, putting the outcome of their case in the hands of government officials and leaving them unprotected from retaliation. To make matters worse, potential whistleblowers only have 30 days to file their complaints, or they automatically lose their case.

If Congress is serious about protecting workers and their rights, they need to amend this legislation to include the following:

  1. A private right of action for employees to pursue their claims if the Department of Labor declined to file a lawsuit in federal court on their behalf;
  2. Extending the statute of limitations from the current 30 days to 180 days;
  3. Modernizing the law to include the standard whistleblower protections that are now included in every whistleblower anti-retaliation law.

To help protect whistleblowers, the National Whistleblower Center (NWC) issued an action alert to urge Congress to implement needed reforms to the Occupational Safety and Health Act.

“Our front-line workers – who risk their lives treating patients, bringing us food and delivering other essential services – deserve much better protection from the coronavirus than they are currently getting. To protect them as well as the communities in which they live and serve, we must guarantee them that their concerns about safety will be heard and that they will not suffer retaliation. Congress must protect our workers by enacting these OSHA reforms as quickly as possible.”

– John Kostyack, NWC Executive Director

The History of OSHA

Originally enacted by Congress in 1970, OSHA was intended to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” It incorporated one of the earliest whistleblower laws, known as §11(c).

Section 11(c) was designed to protect workers who file complaints concerning unsafe working conditions.  It has an expansive reach, covering everything from an employer’s duty to ensure that a scaffolding is not dangerous to providing protective masks for hospital employees.  It also prohibits retaliation against employees who raise safety concerns at work, and authorized the Secretary of Labor to file lawsuits on their behalf for reinstatement and backpay.

Three years after OSHA was passed the Secretary of Labor approved regulations implementing the law. Among those rules was the right of employees to refuse to perform work, without proper safeguards, that could cause “serious injury or death.” It is this right that is so critical in the time of coronavirus. However, the Department of Labor (DOL), which administers OSHA, has wide discretion on how to interpret this right. If they determine that an employee’s refusal to work shouldn’t be protected, they can simply dismiss the complaint.

OSHA is also plagued with other problems. Emily A. Spieler, a Professor of Law and Dean Emerita at the Northeastern University School of Law and a leading national expert on employee safety, wrote a comprehensive analysis of OSHA for the ABA Journal of Labor & Employment Law in 2016.  She summarized the “overall enforcement framework” for OSHA as “weak, underfunded, over bureaucratized and dysfunctional.”

OSHA is the principle federal law that employees must use to report dangerous working conditions caused by the coronavirus pandemic.  If their bosses require them to work in unsafe conditions that could threaten their lives, OSHA is what protects an employee’s right to say “no.”  As the coronavirus pandemic progresses, forcing employees to work at risk of becoming sick with COVID-19 should be prohibited under law. Reforms are needed to ensure this is the case.

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