OSHA seeks comments on whistleblower rule

It establishes procedures, burdens of proof, remedies and statutes of limitations similar to other whistleblower protection statutes from OSHA.

The agency has invited comments on the procedures for handling the complaints.

FSMA, signed into law in January 2011, provides employees who disclose information about a possible violation of the Food, Drug and Cosmetic Act (FD&C) with protection against retaliation from businesses in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food.

Applicable section​

Section 402 of FSMA amended the FD&C to add section 1012 which became effective upon enactment on 4 January 2011.

Section 1012 protects employees against retaliation because they have or will provide information relating to a violation of a provision of the FD&C or any order, rule, regulation, standard, or ban under the FD&C.

It aims to protect employees who have or will testify in a proceeding concerning a violation, they have or are about to assist or participate in a proceeding.

Or they objected or refused to participate in an activity, policy, practice, or assigned task that

the employee reasonably believed to be in violation of the FD&C or any order, rule, regulation, standard, or ban under the FD&C.

Employee rights​

FSMA's whistleblower provisions include the ability for a covered employee to file, within 180 days of the alleged retaliation, a complaint with the Secretary of Labor.

The secretary must provide written notice to those named in the complaint alleged to have violated the FSMA respondent) of the filing of the complaint, the allegations contained, the substance of the supporting evidence and the rights for the respondent in the investigation.

They need to, within 60 days of receipt of the complaint, give the complainant and respondent an opportunity to submit a response and meet with the investigator to present statements from witnesses, and conduct an investigation.

After investigating a complaint, written findings will be published. If there is reasonable cause to believe retaliation has occurred the respondent may have to take affirmative action to abate the violation; reinstate the complainant to their former role together with the compensation of that position (including back pay) and provide compensatory damages to them.

The complainant and the respondent then have 30 days after the date of the Secretary's notification to file objections to the findings and/or preliminary order and request a hearing.

OSHA invites the public to submit comments on the interim final rule​ by 14 April 2014.