labor The Federal Agency That’s Supposed to Protect Workers is Toothless on Covid-19
A worker sets an outdoor table for the Cipriani restaurant on June 22, 2020, in the SoHo neighborhood in New York City.
Stephanie Keith/Getty Images
When Nevada’s casino workers went back to work for the first time since March, many found that their employers weren’t doing enough to protect them from the coronavirus. Casinos, including the MGM Grand and the Bellagio, didn’t immediately inform employees if a new case was detected or shut down their work areas. And they didn’t even require their guests to wear face masks for weeks after reopening, and until the state made it mandatory.
“It’s wrong that they didn’t prepare for handling this,” Sixto Zermeno, a bellman at the MGM Grand who recently tested positive for Covid-19, said in a statement. Management “had three months to prepare, and they didn’t. None of our upper management had a clue what to do, and that’s unfortunate. They put a lot of us and our families at risk.”
Workers across industries face a frightening situation as the United States continues to reopen. Zermeno and his coworkers have one advantage that most workers across America lack: an army of union lawyers to advocate on their behalf. The Culinary Union, the state’s largest, representing 60,000 workers, has filed a lawsuit in federal court. (MGM Resorts, which owns both the MGM Grand and the Bellagio, said in a statement that the lawsuit was the first it had heard of any issues with worker safety and that the union should have first contacted management to “share information and collaborate to keep workers and guests safe.”)
Most American workers aren’t unionized. They depend on state and federal authorities to enforce laws about workplace safety. And right now, they’re largely on their own.
The federal Occupational Safety and Health Administration (OSHA) has taken a laissez-faire approach to the pandemic — issuing non-binding guidelines on keeping workers safe that bear few consequences for employers who break them.
“I am horrified at OSHA. I can’t even call it a response,” Nancy Lassen, a labor attorney based in Philadelphia, said. “They delegated their enforcement authority and their substantive authority to state and local entities, which leaves the typical non-organized, non-union worker who has no lion protecting them at the mercy of whatever their employer decides to do.”
OSHA has already received over 6,000 complaints nationwide about workplace safety issues related to the coronavirus, more than half of which are from the health care industry. Nevertheless, the vast majority of those workplaces haven’t faced inspections.
Some states, including Virginia and Oregon, are working on their own coronavirus regulatory framework to fill the gap in protections for workers and enforce them at local businesses. Just as with other parts of the pandemic response, the lack of leadership from the federal government has put the onus on state authorities.
But in states that are less willing to regulate, restaurants aren’t abiding by occupancy limits, social distancing isn’t being enforced in distribution centers where there are already a high number of positive cases, and grocery stores are allowing customers to go maskless. Workers, meanwhile, have nowhere to turn.
The federal government is abdicating responsibility for protecting workers
OSHA’s formal standards on things like systems to protect workers from falls or warning them about hazardous chemicals in the workplace come with citations and hefty fines for organizations that don’t comply. The agency’s coronavirus guidelines — which the agency started issuing on March 9, before most states issued stay-at-home orders — do not.
They call for employers to develop their own infectious disease preparedness and response plans; implement basic prevention measures, such as regularly cleaning the workplace and encouraging good hygiene; ensure that sick people are identified and isolated quickly; and provide protective equipment, ranging from plexiglass barriers to face masks and gloves. They also offer industry-specific guidance tailored to different kinds of workplaces, including those where social distancing is difficult.
But the guidelines are nonbinding and unenforceable, essentially toothless without repercussions for employers who don’t comply. They have consequently drawn criticism from leading Democrats, including Sen. Elizabeth Warren.
There are business incentives for employers to ensure workplace safety amid the pandemic. The coronavirus doesn’t discriminate based on pay grade: Everyone from the entry level to the C-suite has an interest in creating a safe work environment.
But many of those highly paid white-collar workers have been able to work from home. As essential workers have stayed on job sites, OSHA isn’t holding employers accountable.
Labor Secretary Eugene Scalia, who oversees the agency, told Congress on June 9 that it has issued only a single citation related to Covid-19, proposing a $6,500 fine against a Georgia nursing home for neglecting to report within 24 hours that six of its employees were hospitalized.
There are steps that OSHA could still take to improve workplace safety amid the pandemic. When OSHA finds that workers are in “grave danger” due to exposure to toxic or physically harmful substances or new hazards, it can issue an emergency standard. Developing new workplace standards usually takes years, but an emergency standard would take effect immediately and last for six months.
The novel coronavirus, which has killed more than 130,000 in the US and could leave those who recover with permanent lung damage, could qualify as such a new hazard, labor lawyers argue. As part of a litany of demands, the AFL-CIO, which represents 55 member unions and almost 13 million members, has been pushing the agency to implement an emergency temporary standard to protect workers from infection since at least April. It even sought a federal appeals court order in May mandating that the agency adopt one.
Scalia has defended OSHA’s decision not to issue an emergency standard, writing in an April letter to the AFL-CIO that the industry-specific guidance it has already provided is more effective than a one-size-fits-all approach in a single emergency regulation. The agency didn’t respond to a request for further comment.
But the pandemic is playing out against the backdrop of the White House’s broader push for deregulation. One of Trump’s earliest executive orders, issued in January 2017, demanded that, for every new regulation proposed, at least two prior regulations should be slated for elimination.
Trump has since killed many Obama-era regulations, including a proposal to create a safety standard for health care workers facing airborne pathogens like influenza and tuberculosis. The standard would have required every health care employer, including nursing homes and hospitals, to develop and implement an airborne infection control plan and ensure that its stockpile of personal protective equipment, such as N95 masks, was adequate before the outset of the coronavirus pandemic, which created shortages of such equipment, David Michaels, the former head of OSHA and a professor at the George Washington University School of Public Health, said.
OSHA already has safety standards to protect health care workers from blood-borne pathogens, such as HIV or Ebola, but no such standard exists to protect them from airborne pathogens. A growing body of research suggests that the coronavirus is airborne — transmitted via respiratory droplets and, in some circumstances, aerosols, both of which are expelled while breathing, sneezing, or coughing — so the existing blood-borne pathogens standard does little to ensure workers are protected during this pandemic.
OSHA identified the need for an airborne pathogen standard after H1N1, a strain of influenza, spread to the US in 2009, and it became clear that many health care providers did not comply with the agency’s safety guidelines. The standard went through an extensive six-year review process and was on the agency’s agenda of regulations scheduled to be implemented in October 2017. But the Trump administration decided not to move forward with it.
“The Trump administration made it very clear: They don’t want new regulation,” said Michaels, who oversaw the development of the standard prior to stepping down in January 2017. “They want to get rid of regulation, no matter what the cost to the public in terms of their health and safety. The Trump administration appears to be opposed to regulation on principle.”
OSHA has also chosen to selectively enforce some of its existing standards amid the pandemic, including a record-keeping standard that would require employers to report new coronavirus cases among their employees.
Under normal circumstances, employers are required to report work-related illnesses and injuries and resulting hospitalizations and deaths in a timely manner to OSHA. But the agency has argued that it is difficult to determine that an employee actually contracted the coronavirus in the workplace, given current levels of community spread, and that nationwide contract tracing is still in a nascent stage. Employers are therefore not obligated to report every employee who tests positive for the coronavirus.
Unionized workplaces have been demanding that their employers provide that information anyway. But workers in non-unionized workplaces, who have nothing to rely on but those OSHA reports, could be left in the dark about the amount of risk they’re taking on when they choose to go to work and whether they might have been exposed to the virus.
“OSHA had an opportunity, to our collective benefit as a nation, to require that you report all persons in your workplace with this illness,” Lassen said. “OSHA is a driver of federal government response and could and should have been out there enforcing legal standards from the beginning of the pandemic.”
But even if OSHA were taking meaningful steps to enforce its standards during the pandemic, the problem remains that the federal government as a whole has failed to communicate that worker protection must be a top priority. Employers have been incentivizing employees to show up for work by offering them hazard pay and pandemic bonuses, including in meatpacking plants, which President Donald Trump has ordered to stay open despite them becoming hot spots of infection. Instead, employers should be incentivizing workers to stay home for their own safety and that of their community, Michaels said.
Employers need to feel pressure to do so from the highest levels of government — and that’s not the message coming from the White House right now, he added.
“That requires the president to say it’s unacceptable to allow unprotected workers to be exposed to the virus,” he said. “Simply having more enforcement would be useful, but it’s not enough.”
Some states are stepping up to protect workers instead
With OSHA refusing to issue new standards or enforce existing ones with respect to the coronavirus, some states are developing their own emergency standards.
Virginia was the first to do so in June, with the state’s health and safety board voting to approve a new emergency standard and creating a template for other states to follow suit.
Commissioned by Gov. Ralph Northam, the standard will apply to every business in the state, requiring them to develop plans for handling workers exhibiting coronavirus symptoms, bar employees with coronavirus symptoms from showing up to work, and notify workers who may have been exposed to an infected coworker within 24 hours. It also codifies basic infection prevention measures, such as regular cleaning, social distancing, and hand-washing, and shields workers from retaliation should they call for better safety measures, privately or publicly, or wear protective equipment.
While employers face no penalties for failing to comply with OSHA’s coronavirus guidelines, Virginia’s standard will be enforced by state inspectors who could levy fines of up to $124,000 or force businesses to close if they fail to comply, according to the Washington Post. Some employers, however, have consequently denounced the standard, saying it imposes new burdens on businesses that are already stretched thin and trying to stay afloat during the pandemic.
Oregon has also recently clamped down on businesses with hazardous working conditions. Ahead of the July 4 weekend, Gov. Kate Brown said Oregon would be stringently enforcing the state’s standards mandating face coverings, physical distancing, and occupancy limits for businesses. She sent out staff from the Oregon Liquor Control Commission and the state’s Occupational Safety and Health division to conduct inspections statewide and issue citations, fines, and warning notices to businesses that fail to comply.
How workers can demand better protection
Workers can easily file a complaint online with OSHA if they feel unsafe in the workplace. But even in the best of times, it isn’t necessarily the best way for workers to pressure their employers to adopt better safety measures. The agency has limited resources: It can’t conduct a thorough investigation of every workplace where a complaint has been filed and, even if it does investigate, the process will take months, which is little consolation to workers who are facing imminent risk due to the pandemic.
“In most cases, OSHA is, at best, sending a letter or an email or a phone call to employers when they get a complaint from a worker and requesting that the employer respond, but OSHA rarely follows up to see if that response is accurate or if workers are protected,” Michaels said.
Filing complaints with state Occupational Safety and Health divisions and health departments is also an option. Those agencies are more active in some states, including Massachusetts, Virginia, Pennsylvania, and New York, than others.
Lassen, who represents a number of unions in Pennsylvania, recommends workers collectivize and, if need be, unionize. She has seen that strategy work in the grocery and food-processing industries and among public employees during the pandemic.
“The first thing I always tell people is, ‘Gather your fellow workers together and act as a group,’” she said. “People acting as a group tend to get a lot more attention from employers than squeaking wheels. Individual employees can get marginalized and isolated and retaliated against. But there truly is strength in numbers. Workers that are willing to say we rise together and we fall together have become less of a target and acquire more credibility.”
The National Labor Relations Act protects workers from retaliation should they engage in any concerted activity with respect to their hours, wages, and terms and conditions of employment. So workers who stage a walkout or picket over the lack of personal protective equipment available in the workplace and publicize their dispute with local media, for example, can’t be penalized for doing so.
Lassen says the pandemic could present an opportunity for the labor movement if workers can collectivize around their fear, get the likes of the United Food and Commercial Workers or the United Auto Workers Union to advocate on their behalf, and demand better working conditions through the collective-bargaining process.
“Go get yourself a lion,” she said. “You just need someone who has a bigger voice and will bring it to bear on your behalf.”