Blowing the Whistle on Food Safety: OSHA Issues a Final Rule Related to FDCA Complaints

On April 18, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has issued procedural rules for enforcement of whistleblower complaints alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA). The new final rule, set out in Section 402 of the Food Safety Modernization Act, protects employees who have disclosed information of a possible violation of the FDCA.

The prohibition against retaliation or discrimination outlined in the final rule applies to employers that manufacture, process, pack, transport, distribute, receive, hold, or import food. OSHA enforces similar prohibitions against discrimination to protect employees who report violations of, or engage in other protected activity under, more than 20 statutes and their implementing regulations.

To help ensure that their employees have no need to file complaints with OSHA under Section 402 of the Food Safety Modernization Act, covered employers should consider establishing a policy that fosters open lines of communication so employees can voice any concerns they may have pertaining to food safety and then train managers and supervisors on that policy. Employers should also inform management and supervisors that all employees’ food-safety related concerns should be taken seriously, with prompt follow-up with the employee and no retaliation against the employee for having engaged in protected activity.

Members of the Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to update the Workplace Safety and Health blog with further details on Section 402 of the Food Safety Modernization Act as they develop, in addition to the other antiretaliation statutes that OSHA enforces.

In Chapter 7 of the new Occupational Safety and Health Law Handbook, 3rd ed. (Bernan Press, 2016), Ogletree Deakins attorney Kenneth B. Siepman provides employers with a plain-English breakdown of OSHA’s protections for safety whistleblowers.