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OSHA Issues New Rule for Food Safety Whistleblowers

From Food Safety Magazine

Effective Thursday, February 13, 2014, the U.S. Occupational Safety and Health Administration (OSHA) published an interim final rule governing the agency’s future handling of whistleblower complaints under Section 402 of the FDA Food Safety Modernization Act (FSMA), which protects workers who disclose food safety concerns. The new rule makes it significantly easier for a claimant to establish a prima facie case under FSMA’s whistleblower protection provisions.

Section 402 of FSMA protects employees who are engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food from retaliation when they raise food safety issues with their employer or the government.

Under the new rule, complaining employees are protected from retaliatory actions as long as they have a reasonable belief—defined in the regulation as a subjective, good-faith belief and an objectively reasonable belief—that the complained-of conduct violates the Federal Food Drug and Cosmetic Act (FD&CA). In order to show an “objectively reasonable” belief, an employee must show that a reasonable person would have held the same belief, having the same information, knowledge, training and experience as the complainant. Often the issue of “objective reasonableness” involves factual issues and cannot be decided in the absence of an adjudicatory hearing.

Examples of potential violations of the FD&CA that could, if reported, form the basis of a FD&CA whistleblower claim include: failure to maintain adequate personal cleanliness, failure to wash hands thoroughly, failure to maintain gloves where appropriate and failure to take “other necessary precautions against contamination.”

Given the low bar set by the new rule for meeting the regulation’s standard for protection, employers need to examine their current procedures under food safety. What may have been innocuous before—a complaint that someone’s shoes are unclean or that jewelry is being worn around processing equipment—may now be considered a protected activity.

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