OSHA has issued no Covid-19 citations

Rebecca Rainey

Since the start of the coronavirus pandemic, the federal agency that polices workplace safety has initiated inspections into only about 7 percent of the Covid-19-related complaints that it’s received — and issued citations in none.

Labor Secretary Eugene Scalia, whose Cabinet department includes that agency — the Occupational Safety and Health Administration — says he stands ready to punish employers who don’t protect workers sufficiently from the coronavirus.

“We recognize,” Scalia said May 12 during a virtual meeting of the National Association of Realtors, “that employers’ confidence about what they need to be doing in the workplace … and also workers’ confidence that the right things are being done in the workplace — are both so important.”

But OSHA is caught in the crossfire between congressional Democrats who are trying to compel the agency to hold accountable employers who don’t protect workers from Covid-19, and congressional Republicans pressing to indemnify those same employers against workers who contract the virus on the job.

"The agency that's in charge of ensuring employers provide safe working conditions has in fact failed to issue an enforceable order specific to Covid-19,” United Food and Commercial Workers President Marc Perrone warned the Senate Judiciary Committee on Tuesday. “The longer this continues, the more workers will get sick, and possibly more will die.”

Business groups answer that the economic downturn won’t end until places of work can reopen, and that can’t happen if employers are getting sued over exposure to the highly contagious virus.

“It is crucial that these protections are implemented as soon as possible,” Helen Hill, chief executive of the Charleston Area Convention and Visitors Bureau, said in prepared testimony before a Senate hearing Tuesday. “If businesses do not have confidence in their ability to reopen, America’s recovery efforts will be further delayed, causing even more severe economic harm.”

The coronavirus stimulus bill that House Democrats introduced this week would require OSHA to issue, within seven days of enactment, an “emergency temporary standard” — that is, mandatory coronavirus safety rules for employers. Through the crisis, OSHA has issued a flurry of guidance documents, many in collaboration with the Centers for Disease Control and Prevention, to protect workers in meatpacking plants, pharmacies, nursing homes, dentists’ offices and various other industries. But these are all recommendations, not government directives.

The Democrats’ bill would also require OSHA to issue, within 24 months of enactment, mandatory workplace safety rules for future disease outbreaks. The Obama administration began work on such a standard in response to the H1N1 outbreak in 2009 but never completed work on it. That effort was shelved by the Trump administration.

The Labor Department maintains that neither a temporary nor a permanent mandatory directive is necessary. "Because of the enforcement authorities already available to it and the fluid nature of this health crisis, OSHA does not believe that a new regulation, or standard, is appropriate at this time," an OSHA spokesperson said.

But out of more than 3,800 Covid-19 related complaints that OSHA has received — many concerning a lack of personal protective equipment such as face masks, gloves and gowns — the agency had opened only 281 coronavirus-related inspections as of May 13, according to a Labor Department spokesperson.

Some 2,577 of those have been closed, and the agency has not yet issued a single Covid-19-related citation, the spokesperson said. (One possible reason is that OSHA takes into account a business’s “good faith efforts” when deciding whether to issue a citation.)

According to the watchdog group Accountable.U.S., OSHA inspections have gone down since Covid-19 was declared a national emergency on March 13, from 217 per day on average to 60.

OSHA maintains that the agency investigates every complaint and "will enforce workplace protection requirements where appropriate."

"The agency also responded to double the number of inquiries related to Covid-19 as compared to all inquiries handled in March and April of the previous year," a spokesperson said.

But David Michaels, who was OSHA chief during the Obama administration, said Thursday at a member briefing for the House Education and Labor Committee, “OSHA is essentially sitting back and saying, ‘We can’t do anything.' It's really appalling to me."

Even when OSHA receives a complaint that someone died from potential Covid-19 exposure in the workplace, the agency's enforcement plan says that "may warrant an on-site inspection," but only in high risk industries such as health care.

Safety complaints regarding lower-risk industries, the enforcement plan says, should prompt a "non-formal" response from OSHA that entails notifying the employer of the hazard by email. "All other formal complaints alleging SARS-CoV-2 exposure, where employees are engaged in medium or lower exposure risk tasks … will not normally result in an on-site inspection," the enforcement plan directs.

The agency says the measures are an effort to take "appropriate diligence to protect our own personnel."

"That is not enforcement, that is nothing," said Debbie Berkowitz, a former OSHA policy adviser during the Obama administration who is now with the left-leaning National Employment Law Project. "They are not responding to formal complaints and are simply sending letters to the employer."

Scalia maintains his department can enforce worker safety under a provision in the 1970 statute that created OSHA called the “general duty clause,” which requires businesses to maintain “a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The clause enables OSHA “to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation,” the House Committee on Education and Labor said in 1970. Scalia has said the clause is “applicable” to Covid-19 safety enforcement, and that the agency will “use it as appropriate.”

But OSHA has in the past rarely used the general duty clause in enforcement — according to the National Safety Council, it was applied in 1.5 percent of all OSHA citations in fiscal year 2018 — in part, says Jordan Barab, who was OSHA deputy during the Obama administration, because it’s a cumbersome legal tool requiring a four-part legal test that makes it vulnerable to court challenge.

Before he was labor secretary, Scalia, as a management-side attorney for Gibson, Dunn & Crutcher, was no great fan of the general duties clause either.

“OSHA is not empowered in any circumstance to order a stark change in the business policy to any,” Scalia argued before a federal appeals court in 2013, “but it's particularly inappropriate to do it under the general duty clause.”

Scalia was arguing on behalf of SeaWorld Orlando in the Court of Appeals for District of Columbia Circuit to overturn a general duty clause citation issued by OSHA concerning a trainer’s fatal mauling by a killer whale. OSHA argued that SeaWorld, knowing the whale had killed others before, should have done more to protect the trainer. In this instance, OSHA deployed the general duty clause successfully; the court upheld the citation.

To business groups and many congressional Republicans, more aggressive federal enforcement of workplace safety is a luxury that America can’t afford when business shutdowns have pushed unemployment up to Depression-era levels.

"We need to make sure bad actors are not given a break," Senate Judiciary Chairman Lindsey Graham (R-S.C.) said Tuesday. "But the people who are trying to do it right, can reopen their businesses, their communities, schools and colleges with the assurance that if you practice the right procedures that you don't have to worry about getting sued on top of everything else."

But David Vladeck, a Georgetown Law professor, told senators at the May 12 hearing that providing blanket immunity to businesses, far from eliminating the cost of Covid-19 related injuries, would merely shift them onto worker and consumers.

“Immunity signals to workers and consumers that they go back to work, or they go to the grocery store at their peril,” Vladeck said, adding that businesses that safeguard employees and follow the recommended guidance will be protected from liability already.

The Labor Department, meanwhile, "strongly encouraged" state unemployment agencies earlier this week to find out from employers whether benefit recipients refuse to return to work. Should a recipient of unemployment benefits refuse work, federal guidelines dictate that person can no longer be eligible for those benefits.