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OSHA Issues New Definition for Whistleblower Activity

5/15/2015

In the past several months, we circulated several client alerts relative to a change in the definition of “whistleblower” and what constitutes a protected whistleblowing activity under Section 11(C) of the Occupational Safety and Health Act. We also described what can be described as new definitions of activities employers cannot engage in without violating an employee’s whistleblower rights.

In short, the new definition of a protected whistleblowing activity is the reporting of a workplace illness or injury. The new definition of what constitutes a violation of the employee’s whistleblower rights includes a variety of common work practices, such as mandatory post-incident drug testing, repeat offender programs, and retraining employees on how not to violate safety rules.

OSHA recently issued a new OSHA Job Safety and Health: It’s the Law poster that all workplaces covered by the Occupational Safety and Health Act are required to post. That new poster can be downloaded here. This new poster supplants the previous mandatory OSHA Job Safety and Health: It’s the Law poster.

Please note that the new poster includes the following sentence: “It is illegal to retaliate against an employee for using any of their rights under the law, including raising a health and safety concern with you or with OSHA, or reporting a work-related injury or illness.” As a consequence of the inclusion of this sentence, OSHA has clearly adopted the previously proposed definition of a protected whistleblowing activity and employers need to review their employment policies and procedures to ensure that they are not violating their employees’ rights to engage in this protected activity.