As “essential workers” labor under dangerous conditions through the coronavirus pandemic, they might be curious to learn that the terms of their employment are in technical violation of federal law. For half a century now, it’s been illegal for any U.S. business to expose its employees to “recognized hazards that are causing or are likely to cause death or serious physical harm.”
But a law is only as good as the government’s willingness to enforce it, and the agency that supposedly enforces that one, the Occupational Safety and Health Administration, doesn’t want to. At a congressional hearing Thursday, Democrats demanded to know why OSHA has yet to issue a single citation related to Covid-19—“not one!” exclaimed Representative Alma Adams, chair of the House Workforce Protections Subcommittee—during the two and a half months since the president declared the pandemic to be a national emergency.
There’s no good answer—beyond, that is, the priorities of a Republican administration that’s resistant to the idea that workers possess any rights at all. OSHA refuses to establish enforceable rules for what businesses must do to protect workers from a virus that’s now killed more than 100,000 Americans. Congressional Democrats want OSHA to issue an emergency temporary standard that would penalize employers who failed to comply, and a House-passed coronavirus bill now stalled in the Senate would require OSHA to do so. But Labor Secretary Eugene Scalia, whose Cabinet department includes OSHA, has stated repeatedly that the tools already at OSHA’s disposal are sufficient. (Scalia is the son of the late Supreme Court Justice Antonin Scalia, and he shares his father’s dim view of government regulation.)
The idea that OSHA’s existing apparatus is all that’s needed to punish employers who willfully expose their workers to Covid-19 is hard to square with OSHA’s record of never having done so—or rather, not until this past week, OSHA administrator Loren Sweatt told the congressional panel. (According to Braden Campbell of Law 360, Sweatt’s description of OSHA’s lone citation “was not clearly audible.”* A DOL spokesperson later clarified that the citation was to Winder Nursing Inc., a retirement home in Winder, Georgia, where 27 staff members have tested positive for Covid-19, according to Georgia state records, and 13 residents have died from the virus. The citation was for late reporting of staff hospitalizations. The fine was $3903.60.)
A single, late-breaking OSHA citation just before a scheduled oversight hearing is also a poor match for the deaths by coronavirus of 299 health care workers (according to the Centers for Disease Control and Prevention), and 68 grocery workers (according to the United Food and Commercial Workers), and 67 meat-packers (according to the Food and Environment Reporting Network).
Scalia says the only tool OSHA needs to punish bad actors is the language quoted above from the legislation that created the agency in 1970: “Each employer shall furnish to each of his employees” a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is known as the “duty clause”—and, as Rebecca Rainey reported earlier this month in Politico, it’s a very cumbersome litigation tool that OSHA has seldom used to punish scofflaws in the past. (In fiscal year 2018, it was applied in only 1.5 percent out of a total of roughly 60,000 OSHA citations, according to the National Safety Council.) Scalia himself, Rainey noted, when he was a management-side attorney for Gibson, Dunn & Crutcher, argued in 2013 that the duty clause was “particularly inappropriate” for OSHA to rely on in holding SeaWorld Orlando accountable for the fatal injury of a trainer by a killer whale. (In that instance, the U.S. Court of Appeals for the District of Columbia Circuit disagreed with Scalia and held that the duty clause prevailed.)
At Thursday’s hearing, Sweatt emphasized that OSHA has issued a lot of industry-specific “guidance” related to Covid-19. But guidance is bureaucratese for “advice,” not “rules.” And advice can be ignored. Under the law, OSHA can issue an emergency temporary standard if “employees are exposed to grave danger.” A lawsuit recently brought by the AFL-CIO argues that, under present circumstances, OSHA must issue such a standard—that is, set firm rules that industry must obey.
“Do you think that Covid-19 presents a grave danger to workers?” Adams asked Sweatt at the hearing.
“You’re asking questions around the emergency temporary standard, and I can’t answer that,” Sweatt replied. She couldn’t answer, she maintained, because of the AFL-CIO lawsuit. (This stipulation, like Sweatt’s general nonreply, was evasive at best: Government officials get sued quite frequently—and pending litigation doesn’t typically bar them from responding to questioners in testimony before Congress.)
Adams then posed the same question to John Howard, director of the National Institute for Occupational Safety and Health, which is part of the Centers for Disease Control and Prevention. “Yes, I do,” Howard replied, on the basis of his own agency’s research.
Even under Democratic administrations, OSHA has always been a kludgy agency, mainly because congressional budget appropriators have rarely delivered funds for an effective corps of workplace inspectors within the agency. To take just one infamous example, it took 45 years for OSHA to issue, in 2016, a regulation lowering the allowable exposure limit to silica (i.e., airborne quartz particles), even though the dangers had been documented as far back, literally, as Pliny the Elder in the first century BCE. The Obama administration initiated, but never completed, an OSHA rulemaking process devoted to infectious diseases that would have come in very handy right about now. The Trump administration, which likes to point this out on the rare occasions it discusses workplace safety in the present crisis, is less eager to explain why it shelved the rulemaking on entering office.
Of course, the real reason that OSHA won’t set workplace rules for minimizing exposure to the coronavirus is glaringly obvious: The Trump administration doesn’t want anything to get in the way of reopening places of business. Far from wanting to impose new safety standards, Senate Majority Leader Mitch McConnell is preparing legislation that would shield businesses from future coronavirus lawsuits brought by their employees. Meanwhile, the Labor Department is so worried that workers won’t return to their jobs before the hazards of the coronavirus have passed that it’s already launched a crackdown, with Trump Labor officials pressing state unemployment agencies to find out who these resisters are so that their unemployment benefits can be cut off.
Such tactics wouldn’t seem likely to endear Donald Trump to the white working-class voters who helped put him in the White House in 2016. But not a lot of people who’ve lost their jobs, and whom the Trump administration would now like to return to work, fall within that Trump-supporting demographic. They’re more likely to be low-income workers, Latino or black, women, young—all demographics that voted against Trump. Still, such distinctions could well evaporate as the economic downturn continues. No rational person thinks that giving the pandemic freer rein in the American workplace will make the coronavirus recession any shorter. But rationality is in short supply these days in Washington and will remain so at least until November.
* This article previously included reporting that needed to be updated due to an audio error.