The U.S. Occupational Safety and Health Administration (OSHA) published in the Federal Register an interim final rule last month governing its procedures for retaliation complaints under the whistleblower provision of the FDA Food Safety Modernization Act (FSMA). As we have previously reported, the Act protects workers who disclose food safety concerns. The interim final rule outlines how the agency will handle complaints under Section 402 of the FSMA, which protects employees against reprisals by entities engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food when they raise food safety issues to their employer or the government.
The FDA is responsible for most of the regulations stemming from the coming food safety statute signed into law by President Barack Obama in January 2011. But the Secretary of Labor is responsible for enforcing the whistleblower provision. This puts this portion of the law under OSHA’s domain. According to the interim final rule, OSHA crafted the regulatory provisions governing complaints under the law to be consistent with other whistleblower regulations issued by the agency to the extent that this is possible within the bounds of the statutory language of the FSMA.
The interim rule establishes procedures and time frames for the handling of retaliation complaints under the FSMA. The interim rule will cover:
The rule provides that a complaining employee is protected under the FSMA as long as he has a reasonable belief — defined in the regulation as a subjective, good-faith belief and an objectively reasonable belief — that the complained-of conduct violated the Federal Food, Drug and Cosmetic Act. However, the complainant doesn’t have to show that the conduct complained of constituted an actual violation of law.
The employees must file retaliation complaints within 180 days of when the alleged violation occurs. But complaints can be in any form, either oral or in writing, according to the OSHA regulations. OSHA will then investigate whether there is reasonable cause to believe that retaliation has occurred. On the basis of information obtained in the investigation, the agency will issue, within 60 days of the filing of a complaint, written findings regarding whether there is reasonable cause to believe that the complaint has merit.
Objections to the agency’s findings must be in writing and must be filed with the chief administrative law judge for the U.S. Department of Labor within 30 days of receipt of the findings. An administration law judge will review the case de novo, and the ALJ’s decision will be effective 14 days later unless a timely petition for review has been filed with the ARB, the regulations say. The regulations then give the ARB 30 days to decide whether to grant review of the case. If it does not grant review, the administration law judge’s decision becomes final. The interim rules also note situations in which an employee is permitted to bring a suit in district court alleging the same allegations in the complaint filed with OSHA.
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