OSHA officials talk COVID, whistleblowers during panel discussion

Washington — The COVID-19 pandemic understandably occupied much of a May 11 panel discussion that featured three OSHA experts presenting updates of agency activities, as part of the National Safety Council’s Impact Tracks webinar series.

Although a timetable for issuing an emergency temporary standard related to COVID-19 remains unset, Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, discussed potential directorate action should the agency enact that ETS.

“If an ETS happens, we are going to issue a compliance directive that will show how we are going to be enforcing those provisions,” Kapust said. “We’ll also rescind the guidance that we gave in March 2021 that accompanied the National Emphasis Program, obviously, because of the update.”

The NEP, which focuses enforcement efforts “on companies that put the largest number of workers at serious risk of contracting the coronavirus,” went into effect March 12 and is set to remain so for up to one year.

Kapust was joined on the panel by Anthony Rosa, deputy director of OSHA’s Directorate of Whistleblower Protection Programs, and Doug Kalinowski, director of OSHA’s Directorate of Cooperative and State Programs.

Other highlights from the webinar:

• In fiscal year 2020, OSHA received 11,865 whistleblower complaints – a notable increase Rosa attributed in large part to COVID-19.
• As of April 25, the agency had received 5,271 whistleblower complaints related to COVID-19 since the onset of the pandemic. Rosa said OSHA fell short of 10,000 total complaints in previous fiscal years. “If we have 11,000 complaints in a year and 5,200 of those were COVID[-related], it kind of shows the impact that the pandemic has had on our program,” he said.
• The top four complaints by whistleblower protection statute were: Section (11c) of the Occupational Safety and Health Act (2,539), the Surface Transportation Assistance Act (308), the Federal Railroad Safety Act (154), and the Sarbanes-Oxley Act (143). “In previous years, both the rail industry and the trucking industry were sort of side by side,” Rosa said. “And in recent years, we’ve noticed a significant drop in the number of complaints filed with the railroad.”
• In FY 2020, OSHA aided 17,500 small businesses via compliance assistance consultation – about 10,000 fewer than in most fiscal years, Kalinowski said. Although virtual consultations have increased in prevalence during the pandemic, the agency doesn’t intend for them to be a regular alternative. “As time evolves,” Kalinowski said, “OSHA and others are going more and more onsite as the pandemic lessens, for lack of a better word.”