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Protection of School Asbestos Hazard Whistleblowers

Protection of School Asbestos Hazard Whistleblowers

Section 211 of the Asbestos Hazard Emergency Response Act, 15 U.S.C.S. § 2651, provides that “no state or local educational agency may discriminate against a person in any way, including firing a person who is an employee, because the person provided information relating to a potential violation” of the Act. Section 211 also provides that “any public or private employee or representative of employees who believes he or she has been fired or otherwise discriminated against” may seek review by the Secretary of Labor if such review is applied for within 90 days after the alleged discrimination occurred.

While the Asbestos Hazard Emergency Response Act generally is administered by the Environmental Protection Agency, the Occupational Safety and Health Administration, under Section 211, covers discrimination against public or private employees, whether or not employed by a school, who report violations of the Act. In addition to handling complaints of discrimination from such persons, OSHA also will notify those persons that they may be entitled to maintain a private action.

The prohibition in Section 211 against discrimination applies to state or local primary and secondary educational agencies only. Colleges or graduate educational institutions are not covered.

Under Section 211, the covered state educational agency is the agency within a state that is responsible for supervision of public elementary and secondary schools. Local educational agencies are public authorities that control public elementary or secondary schools. Owners of any private, nonprofit elementary or secondary school buildings also are subject to the prohibition against discrimination.

Whistleblowers who complain about the presence of asbestos in state or local primary and secondary schools are protected. Also, whistleblowers who provide information regarding accreditation of a contractor or laboratory to do asbestos abatement work are protected from discrimination on account of having provided the information.

A complaint regarding discrimination under Section 211 may be made in any form to OSHA, including writing, telephone call, or fax. The complaint must be made within 90 days after the person making the complaint first becomes aware of the alleged discrimination. If the discrimination is a discrete event such as a job termination, the 90 days begins at the time of the termination. If the discrimination is continuing in nature, such as harassment, reduction in benefits, or some other continuing activity, the 90 days begins when the last act of discrimination occurs.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


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