DOL Chief Pours Cold Water On Possible Virus Safety Reg

By Vin Gurrieri
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Law360 (May 26, 2020, 7:21 PM EDT) -- Labor Secretary Eugene Scalia pushed back Tuesday against criticism that the department shortchanged workers' health by not issuing an emergency workplace safety regulation during the coronavirus pandemic, saying the agency has done plenty to safeguard workers' health without having to resort to rulemaking.

Scalia's remarks came during a virtual seminar on Zoom hosted by the Competitive Enterprise Institute, a free-market public policy think tank, that focused on deregulation.

During a portion of his largely prepared remarks, Scalia addressed critiques that have been levied against the U.S. Department of Labor, including through a lawsuit by the AFL-CIO, for failing to protect workers during the pandemic by issuing a formal regulation that imposes new legal safety mandates on employers.

Scalia cited numerous industry-specific safety guidance documents that the Occupational Health and Safety Administration has issued as well as the agency's ongoing enforcement efforts as evidence that the DOL has kept workplace safety at the forefront of its COVID-19 response such that a formal regulatory standard isn't necessary.

"At OSHA … we've been putting out extensive guidance for businesses and workers on the measures that we and the [Centers for Disease Control And Prevention] believe are necessary for a safe workplace," Scalia said. "There have been some asking us to issue a mandatory rule. We have not seen that that would be of any incremental value on top of the guidance we've provided and on top of the significant enforcement authority we already have in cases where employers aren't doing what needs to be done to protect those workers who return."

Scalia also noted that the DOL has responded to COVID-19 by helping implement congressional mandates for paid sick leave and enhanced unemployment insurance, and that the agency is now "pivoting" toward helping unemployed workers get back on the job in a "safe" way.

"We appreciate that a business wants confidence in the measures that they need to take and to know that when those measures are taken [that] they've done enough," Scalia said. "And we're mindful as well that workers need confidence in the safety of their conditions when they return."

The labor secretary's comments came hours after a House Committee on Education and Labor announced that one of its subcommittees will hold a hearing on Thursday to delve into the Trump administration's handling of worker safety issues during the pandemic.

The long-awaited hearing, which will feature testimony from Loren Sweatt, the principal deputy assistant secretary of the Occupational Safety and Health Administration, was originally scheduled for last week but was postponed. That led to some partisan rancor among lawmakers over the reason for the delay. The DOL for its part released portions of Sweatt's written testimony shortly after the hearing was pushed back that reiterated OSHA's commitment to addressing COVID-19.

Besides his brief aside regarding OSHA, Scalia spent the bulk of his remarks on Tuesday buttressing the Trump administration's years-long push to cut what it sees as burdensome regulations on employers that impair economic growth.

President Donald Trump took the latest step in furthering that goal last week when he signed an executive order mandating that government agencies do all they can to reasonably ease or eliminate rules on businesses as unemployment and business closures mount due to the pandemic. The move was in keeping with other executive orders Trump has issued throughout his term, including one that came soon after he took office directing federal agencies to eliminate two regulations for every new one passed.  

Scalia referenced both of Trump's executive orders, saying they evince a broad administration-wide push toward deregulation that he has worked to advance since taking the helm at DOL last year after he worked for years as a private practitioner challenging federal regulations.

Moreover, Scalia touted the pre-pandemic unemployment rates and jobs numbers as evidence that the administration's deregulatory push yielded positive economic results. But he acknowledged that the virus has drastically altered the employment landscape, as nearly 40 million workers have filed for unemployment benefits in recent months and the unemployment rate has climbed to 14.7%.

The DOL chief also said that the unemployment rate "will be higher" when the agency puts out its next unemployment report. But he asserted that the path to reviving the economy won't be through "government mandates."

"Since March, our nation has been in a period of extraordinary government intervention and that has been needed, we had to do it," he said. "But we cannot forget the exceptional economy we had before the virus and the policies that brought it about. And we cannot forget that the single best thing that the government can do for the American worker is to foster conditions for vibrant job growth."

--Additional reporting by Kevin Stawicki, Michael Phillis and Braden Campbell. Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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