Where Is OSHA?

As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed.

Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.

Since early March, unions, advocates, and workers have called on OSHA to take immediate action to adopt an emergency temporary standard and subsequent permanent standard to protect frontline workers from infectious diseases like COVID-19. Such an effort was underway during the Obama administration in response to the H1N1 flu pandemic, but Trump’s OSHA removed the rulemaking from the agenda in 2017. Such a rule would guarantee all essential workers a standard level of protection from coronavirus now and other infectious diseases long into the future. But instead of following up on these calls, the agency has declined to start working on a standard or take any other actions at all.

Even without an infectious disease standard, OSHA acknowledges that it has the authority to cite violations of its standards on personal protective equipment, sanitation, bloodborne pathogens, and hazardous substances, as well as to cite employers for violating their general duty to protect workers from known hazards in the workplace. Still, when workers have contacted OSHA to file complaints, the agency has claimed it’s unable to help. In one case, the Milwaukee Journal Sentinel reports, an OSHA official told an attorney representing the family of a deceased Walmart employee that it had no jurisdiction to inspect the work-related fatality, saying, “OSHA does not have any jurisdiction on enforcing anything related to COVID-19 at this time.”

Following up the anecdotal reports of OSHA missing in action, the agency released several guidance documents related to its enforcement policy during the coronavirus outbreak, all of which make it abundantly clear that it won’t be doing much at all. Rather than holding employers accountable for safeguarding workers from COVID-19, OSHA is just letting employers off the hook, a virtual invitation to unscrupulous employers to risk their employees’ health.

The agency’s April 13 “Interim Enforcement Response Plan” states that when OSHA receives a worker complaint related to COVID-19, it will consider it an “informal complaint” instead of a “formal" one. Under normal circumstances, formal complaints are more likely to prompt inspections, and informal complaints generally trigger a letter from OSHA to the employer about the complaint, which requires the employer to respond.

Now that complaints are on the rise and workers are desperate for help from OSHA, however, the agency has decided all complaints outside of the health care industry will be handled informally. OSHA will send a letter notifying the company of the complaint and encouraging employers to ask sick employees to stay home, accommodate telework, emphasize hygiene etiquette, perform cleaning, and stay apprised of government advisories.

Under the new guidance, the only time OSHA may conduct an inspection is if there has been a fatality or imminent danger exposure in a high-risk setting, like health care workers intubating COVID-19 patients. All other inspections, including when an employer reports an in-patient hospitalization, will be conducted using OSHA’s “rapid response investigation” procedures, which is a dressed-up way of saying that the employer inspects itself and reports its findings to the agency.

In a separate guidance document released April 10, “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019,” OSHA excuses employers from recording COVID-19 illnesses under its recordkeeping regulations. Typically, employers would be required to record a confirmed COVID-19 case contracted at work. Instead of enforcing the recordkeeping regulations, the guidance tells employers (except in health care, emergency response, and correctional institutions) that they do not need to worry about recording the COVID-19 case if they are “having difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work.” The purpose of letting employers off the hook in this way, according to OSHA, is to “provide certainty to the regulated community.”

OSHA is not only acting against the interests of workers exposed to COVID-19, it leaves the agency without critical data for later evaluation of employers’ response to the pandemic so that it can help recommend improvements to prevent the spread of future infectious diseases. Moreover, if an employer can choose not to record a COVID-19 case because it “had difficulty” deciding whether it was work-related, the employer will also be able to avoid reporting to OSHA if the worker is later hospitalized, thereby avoiding a “rapid response investigation.”

OSHA issued yet another guidance document on April 16, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts,” and yet again, the agency is letting employers off the hook. The guidance says that inspectors will take into “strong consideration in determining whether to cite a violation” whether an employer acted in “good faith” to comply with OSHA standards related to training, audit, assessment, inspection, or testing requirements.

In a nod to workers, OSHA has also reminded employers that they cannot retaliate against employees who raise concerns about health and safety in the workplace. Yet the OSH Act’s whistleblower protections are notoriously weak and outdated and offer little recourse for workers. And OSHA has not announced any efforts to ramp up the program or fast-track investigations during this time.

Under the current whistleblower provisions, workers have a mere 30 days to file a complaint, investigations take nearly a year, the agency cannot preliminarily reinstate employees, and there is no option for workers to pursue a case independently. According to Business Insurance, in March, OSHA received 386 complaints of retaliation for raising concerns about COVID-19, many of which fall under the scope of the OSH Act’s whistleblower protections. Unfortunately, many of these workers will not see a positive outcome in their cases, and those who do will not see recourse for many months.

In fairness to OSHA, the reasons given for its latest enforcement guidance aren’t beyond all reason – the agency needs to prioritize its very limited resources during a crisis (which are due to political abuse unrelated to the coronavirus), and it needs to prioritize the safety of its own staff and inspectors. Even with that in mind, however, the decisions it has made are disastrous for workers on the front lines and completely contrary to its mission to protect America’s workers.

Imagine for a moment that OSHA was a vigorous agency that took seriously its charge to protect the nation's workers. Such an OSHA would not issue guidance that amounts to a series of escape hatches for employers. Rather, it would aggressively seek to ensure the health and safety of workers by requiring employers – now more than ever – to do what was necessary to protect their workers. That OSHA would make clear that the burden is on employers to ensure a safe workplace, not on workers to avoid hazards on the job. That would include:

• Adopting an emergency temporary standard and subsequent permanent standard that protects all frontline workers from exposure to infectious diseases, including coronavirus
• Requiring employers in all industries to make a work-relatedness determination and record all confirmed COVID-19 cases in their OSHA logs
• Responding to all complaints it receives as quickly as possible and requiring employers to respond to all letters the agency sends regarding informal complaints
• Enforcing violations of its existing standards related to protective gear, sanitation, bloodborne pathogens, and hazardous chemicals, and ramping up citations using its general duty clause authority
• Bolstering the whistleblower protection program immediately by adopting recommendations that do not require legislative action and by completing investigations within 90 days
• Encouraging employers to temporarily close operations if it cannot comply with health and safety standards to prevent the spread of coronavirus
• Providing leadership and resources to states that operate their own occupational safety and health programs in lieu of federal OSHA
• Educating employers, the federal government, and local governments about the need to institute widespread testing of employees and ensure sufficient protective gear prior to reopening businesses shutdown under shelter-in-place orders