OSHA’s new nationwide year-long pilot program that took effect on February 17, 2023, will aim to streamline the whistleblower complaint intake process.
OSHA, which administers over two dozen whistleblower statutes, has seen a rising number of whistleblower 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 needing to contact 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 purposes.
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.
An important takeaway is that the apparent need for this program reflects the proliferation of whistleblower complaints in recent years.