The Post-Pandemic Workplace Needs Better Safety Regulation

By Charles Jeffress
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Law360 (May 20, 2020, 5:36 PM EDT) --
Charles Jeffress
Charles Jeffress
The push by President Donald Trump and lawmakers to restart America's economy is well-intentioned.

In addition to the pain levied upon the sick, their families and the health care providers caring for them, millions of Americans are facing financial catastrophe. And while the American people have done an admirable job adhering to stay-at-home orders, this is only sustainable for so long.

Allowing businesses to reopen and people to return to everyday living does not mean the public is ready to return to their precoronavirus lives. Consumers will not shop if they believe businesses are not taking proper precautions, and workers will be reluctant to return to work if their lives are in danger.

Yet instead of ensuring businesses have the resources to protect their workforce, President Trump has ordered the reopening of meat plants without regard to the health and safety of workers in the plants, and Senate Majority Leader Mitch McConnell, R-Ky., has prioritized giving liability protections to businesses when the Senate returns from recess.

These actions send a terrible, confidence-sapping message to the American people — that companies need not worry if their employees or customers are safe from COVID-19. But more importantly, such a policy will result in a second wave of the virus and undoubtedly force us back to the "shelter in place" lifestyle we are all anxious to end.

Since the COVID-19 outbreak began in the United States, thousands of employees have gotten sick and thousands of complaints have been filed with the Occupational Safety and Health Administration over workplace concerns. This will only rise as more nonessential employees are told to return to work.

While OSHA, the Centers for Disease Control and Prevention, and state regulators have issued guidelines to be followed when businesses reopen, guidelines are not enforceable and will not generate confidence among workers or consumers. OSHA refuses to issue an emergency regulation to protect workers.

Adding blanket liability immunity will eliminate an essential incentive for corporate responsibility. While most businesses operate responsibly (after all, it makes good business sense to keep workers and customers safe), blanket immunity will help only those corporations that refuse to take basic precautions.

This is borne out in polling conducted by the U.S. Chamber of Commerce. According to the Chamber's poll of 500 small-business owners, when given a list of six possible small-business relief programs from the federal government, "enacting liability protection legislation" was picked by the fewest number of respondents — less than 10 percent of small-business owners.

The ramifications of another outbreak will be as severe as the current pain our country is feeling. As we have unfortunately learned, nothing with this virus happens in isolation.

The consequences of a work environment where ill workers expose others on the job to the virus will carry over into people's homes, places of worship, and their communities at large. Examples like the Smithfield plant in South Dakota — home to one of the largest workplace-based outbreaks in the nation — starkly illustrate how a lack of workplace protections will spread the virus and cause hardships far beyond the workplace. 

We will be back to where we started — another economic shutdown with stay-at-home orders that shutter businesses, deepen the economic hardship for American families, and cause tens of thousands of more hospitalizations and deaths.

All businesses need to take responsibility when they reopen, and our laws and regulations must provide incentives to protect workers and consumers. If a business fails to do so and sickens or kills people, the business and its owners should be held accountable through the courts and regulatory agencies. We should not eliminate any tool that will help ensure the health and safety of people who return to work and consumers who patronize stores and restaurants.

We should not bestow blanket legal immunity on corporations that refuse to do the right thing and endanger others, and OSHA cannot continue without an emergency regulation. Not only is it terrible public health policy to do otherwise, but it will unnecessarily jeopardize the economic recovery we all hope comes soon and swiftly.



Charles N. Jeffress is a former assistant secretary at OSHA.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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

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