The prevention of reprisals against those individuals who turn in their employer, or alert health and safety regulators to problems at their place of employment, has long been a part of Canadian OHS law. How successful this protection has been largely depends on the willingness of the employee to risk retaliation and assert their rights under applicable provincial or federal OHS legislation in Canada. In light of the West Virginia Mine disaster earlier this year, and the now infamous BP oil spill in the Gulf, which of course also resulted in the explosion and fire on the rig and death of 11 workers, the U.S. OSH administration is reviewing its whistleblower protection.

Occupational Safety and Health Administration (OSHA) administrator David Michaels recently announced the agency would conduct a “top-to-bottom” review of its whistleblower protection program, and address the difficulties and inconsistencies in the “patchwork” of laws protecting whistleblowers.

OSHA is tasked with enforcing a varied collection of whistleblower protections, including the Occupational Safety and Health Act statute, seven environmental statutes and six transportation statutes. “Along with an inconsistent, confusing collection of provisions, we find unsatisfying outcomes of complaints,” Michaels said. “Too few complaints are reaching resolutions intended by the whistleblower provisions.”

Calling the 40-year-old OSH Act “antiquated,” Michaels praised the whistleblower protection provisions in the Protecting America’s Workers Act (S. 1580). The legislation would expand anti-retaliation provisions by:

  • Prohibiting employer policies that discourage workers from reporting illnesses or injuries
  • Prohibiting employer retaliation against reporting injuries or illnesses
  • Granting workers the right to pursue their cases if OSHA fails to do so in a timely manner

Michaels said the provisions in PAWA are only the first step – 16 other whistleblower statutes will also need strengthening. Although critics have claimed that whistleblower protection has not been on the “radar” of OSHA leadership, Michaels disagreed. “Whistleblower protection is an essential part of strong enforcement, and over the last year, OSHA has been struggling to shore up its foundations on several fronts,” he said.

It is interesting, from a Canadian perspective, to look at the U.S. OSH response to recent occupational health and safety crises and consider how to review and improve their legislation. For example, there is a greater emphasis in Canadian OHS legislation on the role of a joint health and safety committee and safety representatives than there is in the U.S. The last president who attempted to amend the American OSHA, Bill Clinton, was unsuccessful. However, before we dismiss this initiative by David Michaels, it is clear that the whistleblower protection is an important aspect of any sophisticated OHS legislative regime, and the pending changes in the United States are worth consideration for Canadian OHS regulators and for progressive employer best practices.