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COVID-19: We need more OSHA, not less
It's easy for all of us - including our national leadership - to pay lip-service to caring about the safety and health of our frontlines, essential workers in the face of COVID-19. It's something else entirely to transform that concern into real protections for real people.
The Occupational Safety and Health Administration (OSHA) is the federal agency charged with assuring "safe and healthful working conditions for working men and women" in the United States. It's a sacred obligation.
Since the passage of the Occupational Safety and Health Act in 1970, workplace deaths, injuries and illnesses have significantly declined. But with an average of 275 workplace deaths each day in 2017, there's still a long way to go.
Employers covered by the law are required to comply with standards addressing workplace health and safety, from machine-guarding requirements, to construction safety rules to protections against bloodborne pathogens. But there are important gaps where rules should be.
In 2001, a newly-enacted standard addressing ergonomic hazards - those that cause painful and often chronic musculoskeletal disorders - was rescinded by the George W. Bush administration. There is no standard addressing the ever-serious and burgeoning problem of workplace violence. Moreover, this is especially concerning in our present pandemic moment: A carefully-developed draft standard designed to stem the hazards infectious diseases like COVID-19 present - to health care workers and others - was shelved by the Trump administration a few years ago. We're now paying the price.
At a briefing on April 8, President Trump singled out the pandemic-driven perils faced by cashiers and clerks at grocery stores. "They're really in great danger," he said. Yet on the same day, OSHA issued an "alert" - not a rule - suggesting, but not requiring, certain safety tips be followed to "help protect retail workers from exposure to coronavirus." A few days before that, OSHA issued 35 pages of "Guidance on Preparing Workplaces for COVID-19," but that guidance document is only "advisory in nature" and "creates no new legal obligations."
There's a sizable gap between a recommendation to implement safety measures and an enforceable rule mandating them. When it's only a suggestion, employers concerned with their bottomline may opt to ignore or postpone. When they do, workers' lives are put at risk.
Which is why - in this time of unprecedented dangers to frontline workers - we need rules, with teeth, to ensure they get the protections they deserve. That means enacting emergency temporary regulations governing workplace protections against infectious disease, at least for the duration of the pandemic. It also means ratcheting up OSHA's inspection regime and cadre of safety and health compliance officers. Currently, any given establishment covered by the law is likely to be inspected once every 165 years. Is that how we support OSHA's promise to ensure worker protection in this country?
Regulatory action to stanch the bleeding is critical right now. But even without it, OSHA has tools in its kit that it isn't using. As former OSHA chief David Michaels points out, employers who blatantly fail to protect workers in a manner consistent with the prevailing guidance could face a charge of violating the law's "general duty" to provide a safe and healthy workplace, and those charges could be publicized for enhanced effect.
Another rarely used means to protect workers is OSHA's "imminent danger" authority. Under the law, OSHA can go to federal court seeking an order restraining any hazardous workplace condition that could reasonably be expected to cause death or serious physical harm, and not necessarily immediately.
We all know now how easily COVID-19 can be transmitted and how lethal it can be. Employers who persist in putting their workers - especially those who are medically compromised and older - in harm's way, without taking adequate steps to protect them, deserve to face the consequences in federal court.
Our government needs to do all it can to protect our frontline workers in this time of extreme hazard. That means we need a whole lot more OSHA - guidance, regulations and enforcement - than we're seeing, not less. It's not hyperbole to say that lives - many lives - depend on it.
Michael Felsen is an Access to Justice fellow at Justice at Work in Boston. He was an attorney in the Regional Solicitor's office with the U.S. Department of Labor, Boston Office, for 39 years. He served as regional solicitor from 2010-2018.