By James L. Curtis, Meagan Newman, and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has adopted a new directive, CPL 02-03-004 (September 12, 2012), to provide procedures for the processing of appeals filed under Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)), and appeals filed under the Asbestos Hazard Emergency Response Act (AHERA), and the International Safe Container Act (ISCA). OSHA is responsible for the enforcement of whistleblower provisions under twenty-two statutes. All of these statutes provide for an avenue of appeal, except for these three laws (Section 11(c), AHERA, and ISCA). Although such appeals were not specifically provided for by statute or regulation, it has been OSHA’s policy and procedure to provide complainants with the right to appeal determinations under Section 11(c), AHERA, and ISCA.

Originally, Section 11(c), AHERA, and ISCA appeals were heard in Washington, DC, however in 2009 and 2010 Regions IV, V, and VI began piloting their own appeals programs. A government audit, though, found issues with the regional programs. “The team has concerns about the lack of effort being made to decrease and/or eliminate the backlog. The team’s other concern is that permitting four separate appeals programs will lead to inconsistencies and further external criticism.” This instruction establishes an updated national program using a new process and the best practices from all the regional appeal programs.

The directive grants Section 11(c), AHERA, and ISCA complainants fifteen calendar days from receipt of the dismissal letter to appeal the decision with OSHA’s Whistleblower Protection Program (OWPP). The directive also establishes an Appeals Committee to examine any cases that merit further review.