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March 2023: New Whistleblower Intake Program Becomes Effective for OSHA-Administered Whistleblower Statutes

08 Mar

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Update Applicable to:
All employers.

What happened?
On February 17, 2023, the Occupational Safety and Health Administration’s (OSHA) Directorate of Whistleblower Protection Programs’ new whistleblower complaint intake pilot program (Directive 23-01 (CPL 02)) went into effect, governing complaints covered by OSHA-administered whistleblower statutes.

What are the details?
OSHA, which administers over two dozen whistleblower statutes, has seen a rising number of complaints filed in recent years. This pilot program aims to relieve the strain on OSHA’s investigative resources by allowing an investigator to administratively close a complaint without contacting the Complainant.

Under the program, OSHA will administratively close a complaint if it facially:

  1. Is not covered by an OSHA-administered whistleblower statute;
  2. Is untimely filed and equitable tolling does not appear to apply; or
  3. Only alleges safety or compliance issues but does not allege retaliation or other prohibited activity.

Upon closure, the Complainant will receive a letter notifying them of the closure and informing them that they may provide additional information to change the closure decision.

Notably, when OSHA administratively closes a complaint, it will preserve the filing date for timeliness.

The program is an expansion of a similar pilot program implemented by OSHA Region II between May 1, 2020, and April 30, 2021.  OSHA adopted improvements to the program, including adding more information to the closure letters about equitable tolling to assist Complainants in refiling with additional information where their complaint was closed for timeliness. The closure letter may also include referrals to other agencies; for example, if the Complainant alleged discrimination based on a protected category, the letter will provide a referral to the EEOC.

For more information, please see the links below:

OSHA Notice

Article 1Article 2

What do employers need to do?
Employers should review the links provided above to educate them on this new directive, which will help reduce complaints.

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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