On January 28, 2016, OSHA published an update to their Whistleblower Investigations Manual, replacing the old version that was dated April 21, 2015. There are three significant modifications:
The Investigative Records section has been removed and incorporated into the new Chapter 23, “Information Disclosure”. The Statistics section has also been removed.
The burden of proof, as stated in Chapter 3, “Conduct of the Investigation”, has been modified. Under the old language, the merits of a whistleblower investigation were decided based on a “preponderance of the evidence.” The new standard states that the burden of proof for all whistleblower statutes enforced by OSHA has been lowered to “reasonable cause.” The evidence no longer needs to conclusively establish that a violation actually occurred, rather, “OSHA must believe… that a reasonable Judge could rule in favor of the complainant.”
As part of the aforementioned new Chapter 23, “Information Disclosure” has been added. This section provides instructions on the disclosure of whistleblower-related documents. Also included is a discussion on non-public disclosure of information contained in the investigation file with a party to the investigation. OSHA has the option to provide a summary of the documents included versus providing the documents in their entirety. This could be appropriate in situations where providing the actual documents could lead to retaliation against the complainant or could result in an incident of workplace violence.
For more information, the updated OSHA manual can be accessed in its entirety at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-007.pdf.