Whistleblower provisions under FSMAOn Feb. 12, the Occupational Safety and Health Administration issued an interim final rule addressing procedures for retaliation complaints under the whistleblower provisions of the Food Safety Modernization Act.

OSHA’s interim rule explains how the agency will deal with complaints brought under Section 402 of the FSMA. Section 402 provides protection against retaliation to employees who raise food safety concerns to the government or their employer. Section 402 applies to manufacturers, processors, packers, transporters and distributors of food products as well as those who hold or import food.

In recent years, fresh produce — specifically cantaloupes, sprouts and lettuce — made the news for being the source of listeria and salmonella outbreaks.

The Food and Drug Administration received a clear mandate from Congress to assess the risks associated with certain fruits and vegetables. In response, the FDA proposed standards associated with routes of microbial contamination of produce (Produce Safety Rule).

Clearly, fresh produce and vegetables are a focus of the FDA.

The FSMA regulations related to fruits and vegetables mean that an employee at a facility that holds or packs raw fruits and vegetables is potentially covered by the FSMA whistleblower provisions. Employees at facilities that manufacture or process fruits and vegetables are also covered by the whistleblower provision.

Any employee who brings a complaint related to food safety may now qualify for protection as a whistleblower. For example, an employee who raises a concern with his or her supervisor that the “kill step” used before packing fruits or vegetables is not sufficient is protected as a whistleblower.

OSHA clarified that a complaint or concern must be based upon a reasonable belief a violation occurred.

Significantly, an employee need not actually demonstrate a violation of the law occurred. Employees asserting retaliation claims must file a complaint with the secretary of labor within 180 days of the alleged conduct. The complaint may be in writing or oral.

Within 60 days of the filing of the complaint, the labor secretary must afford the complainant and respondent an opportunity to submit responses, meet with the investigator, present statements of witness and conduct an investigation.

The secretary will then issue written findings, which may include a preliminary order that there is reasonable cause to believe retaliation occurred. In that case, the preliminary order may require the employer to abate the violation or reinstate the complainant and it may award back pay, compensatory damages and/or attorney fees.

Objections to the findings or preliminary order and a request for hearing must be filed with the chief administrative law judge for the Department of Labor within 30 days of receipt of OSHA’s findings. An administrative law judge will then conduct a de novo review, meaning the judge is not bound by the legal or factual conclusions contained in the written findings, of the case and issue a decision. The filing of objections stays any remedy in the preliminary order except for preliminary reinstatement of the complainant. If a hearing is conducted, the administrative law judge has 120 days to issue a final order.

Within 60 days of the final order, either side may appeal that decision to the U.S. Court of Appeals for the circuit in which the violation allegedly occurred or the circuit where the complainant resided on the date of the alleged violation.

The interim rule also permits an employee to seek review of the complaint by a U.S. District Court if the Secretary has not issued a final decision within 210 days after the filing of the complaint, or within 90 days after receiving a written determination. In that event, either side may request a trial by jury.

OSHA’s interim rule was effective as of Feb.13, Comments to the interim rule were due by April 14. The final rule will likely be substantially similar to the interim rule.

Employers covered by the rule should implement policies and procedures that address whistleblowers, train managers and supervisors, conduct exit interviews of employees and set up a tip line to encourage employees to report food safety issues internally.