AFL-CIO Chief Keeps Up Attack On DOL's Pandemic Response

By Kevin Stawicki
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Law360 (May 8, 2020, 7:55 PM EDT) -- The AFL-CIO continued a back-and-forth with U.S. Department of Labor Secretary Eugene Scalia over his decision not to issue coronavirus safety rules, saying the Occupational Safety and Health Administration has not even flexed the power it has in the absence of a mandate.

Richard Trumka, chief of the 12 million-member labor federation, said in a letter to Scalia on Thursday that the agency "has not issued a single citation related to COVID-19 for a violation of an existing standard," as Scalia has claimed the agency will do.

Scalia told Trumka in a letter on April 30 that "the cop is on the beat," insisting the DOL and OSHA are using every enforcement tool, in addition to providing guidance about how employers should promote social distancing, maintain proper sanitation and implement infection-prevention measures.

The April 30 letter was in response to Trumka's blistering letter two days before that accused Scalia of "missing in action," a sentiment Scalia took as a slight against the agency's hardworking public servants.

"When we say OSHA is missing in action, we do not mean OSHA has not taken any actions; we mean that many front-line workers have not witnessed meaningful action by their employers and have felt stranded by the federal government," Trumka wrote Thursday, adding that the criticism "was not that of the hardworking agency career staff, but of the policy direction and actions of the leadership."

Trumka, along with Democrats and workers' advocates, have been urging OSHA to issue emergency infectious disease rules and withdraw guidance that they say gives employers a pass on reporting COVID-19 cases.

While Scalia argued that any assertions that the nonbinding guidance doesn't hold employers' feet to the fire in terms of compliance only deceive workers and employers alike, Trumka said the numbers tell a different story.

"A search of OSHA's enforcement database shows that OSHA has not issued a single citation related to COVID-19 for a violation of an existing standard or the general duty clause," he wrote in Thursday's letter, adding that during the HIV/AIDS epidemic, OSHA issued more than 400 general duty clause citations to employers for failing to protect workers.

Any workplace inspections the agency has initiated have been in response to fatalities and "too late to protect those already exposed and infected," only further indicating the need for an emergency standard, Trumka wrote. An emergency temporary standard would require employers to develop workplace infection control plans, implement work practice controls like social distancing, and provide proper sanitation and personal protective equipment to limit the virus' spread.

Trumka is far from alone in his call for OSHA to issue the emergency standard. The U.S. House of Representatives and the U.S. Senate have introduced companion bills to require OSHA to issue the emergency temporary standard.

Scalia and OSHA have said they have no intention of imposing new regulations.

"Employers are implementing measures to protect workers in workplaces across the country," Scalia said in the April 30 letter, adding that an emergency standard would "add nothing."

Guidance tailored to specific industries is more valuable than the suggested rule, given the constantly evolving nature of the pandemic and the fact that the pandemic is not a hazard unique to the workplace, according to Scalia.

"This by no means lessens the need for employers to address the virus," he said. "But it means that the virus cannot be viewed in the same way as other workplace hazards."

But Trumka said Thursday that even though the hazard exists with and beyond the workplace doesn't mean the agency can avoid responsibility to regulate those hazards.

"The nation is desperate to control this pandemic so that people can resume work and life," he wrote. "Workplaces are at the center of this crisis, not on the sideline."

A spokesperson for the DOL said Friday that the department will continue to issue guidance and investigate complaints.  

Representatives for OSHA did not immediately respond to requests for comment Friday. 

--Editing by Janice Carter Brown.

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

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