Testimony Given by Debra Coyle McFadden to the U.S. Occupational Safety and Health Administration Whistleblower Stakeholder Meeting on May 19, 2021

Thank you for the opportunity to testify. My name is Debra Coyle McFadden, and I am the Executive Director of the NJ Work Environment Council. We are a coalition of 70 labor, community, and environmental organizations, as well as many individuals advocating for safe, secure jobs and a health sustainable environment. The NJ Work Environment Council is also an affiliate of the National Council for Occupational Safety and Health Network as well as the national coalition to Prevent Chemical Disasters.

Let me be direct. If workers are not truly protected when participating in safety or health activities, or reporting workplace hazards to their employer, they won’t do it. The consequence of this will be that more workers will die in workplace fatalities or become sick or injured on the jobs.

The impact of not reporting health and safety hazards may also go well beyond the workplace. For example, if a refinery or chemical worker doesn’t feel protected from retaliation, they might not report a serious health and safety hazard that if reported and corrected could prevent a toxic catastrophe. A hazard that is left unreported could lead to a toxic catastrophe such as a fire, explosion, or toxic release, not only put that worker at risk, but also the rest of the workforce, emergency responders, the surrounding community and the environment.

The real-world application of OSHA 11c whistleblower protections are, at best, inadequate and antiquated. Employers still feel emboldened to illegally retaliate against workers for speaking up. The chilling effect is workers are silenced.

The COVID-19 pandemic has exacerbated and exposed how broken and ineffective OSHA whistleblower protections are. Early in the pandemic, essential workers were asked to go to work and put their lives on the line while the public hailed them as heroes. Often, when these same heroes sounded the alarm about a health and safety issue, they were fired. Fired because they wanted to protect themselves and their families. That is no way to treat heroes.

Retaliation against nurses and other healthcare workers for blowing the whistle during the pandemic has been well documented. It was so rampant, in April of 2020 the American Nurses Association put out a press release addressing the disturbing number of reports on retaliation against nurses for raising COVID-19 concerns. They raised legitimate concerns about their personal safety while caring for patients with COVID-19.

Illegal retaliation is a problem for all workers — and especially for immigrants, non-English speakers and other vulnerable populations. In one workplace in NJ employees were not afforded any protection during the pandemic. As a result, many workers got sick, and two workers died.  When workers spoke up for what they needed, they were immediately retaliated against. Some had worked for the company for decades and were suddenly asked for documents proving their immigration status. Shortly after, they were terminated. This is not only retaliation; it is also weaponing immigration status to use against an employee.

If we truly want worker involvement in identifying hazards, updating 11c must be a priority for OSHA, Congress and the White House.

And before I move to recommendations, I would also like to say an Emergency Temporary COVID Standard with strong whistleblower protections would provide an urgently needed tool for workers to speak up about COVID risks.

Many before me have already testified on recommendations to strengthen 11c.
Recommendations include:

  • Provide federal and state OSHA agencies with increased funding for
    • Whistleblower investigators to significantly increase the current staffing level with attention to diversity and language justice.
    • Partner with non-government organizations, non-profits, universities, unions, etc. to provide training to employers and employees on whistleblower protections to expand your reach.
  • Utilize modern communications such as YouTube and social media to reach and inform young workers and provide info in various languages.
  • Highlight the whistleblower program regularly in your weekly e-newsletter.
  • Allow immediate preliminary reinstatement of employees when the finding is the worker suffered an illegal termination
  • Extend the timeframe for filing complaints under the federal OSHA law to at least 180 days.
  • Revise the burden of proof under the OSHA law to conform to the standard utilized in more recently enacted statutes passed since 2000. And issue clear guidance about proof.
  • Review and strengthen whistleblower protections for temporary workers.
  • When there is an onsite inspection, communicate with workers in the language they understand.
  • Provide workers with a private right of action.
  • Real time tracking system for whistleblowers cases, regular updates with whistleblowers & make the database public.
  • Conduct an analysis and review of whistleblower cases on an annual basis to identify trends and make recommendations on how to improve whistleblower protections. This should be made public.
  • Bring back the Whistleblower Advisory Board Committee that was disbanded under Trump.
  • Continue to hold stakeholder sessions like this one.

Thank you for the opportunity to testify.