By Braden Campbell

Law360 (May 29, 2020, 9:52 PM EDT) -- The disclosure at a congressional hearing that the Occupational Safety and Health Administration had only issued one citation related to the COVID-19 pandemic shows the workplace safety watchdog is dropping the ball, worker advocates say.

Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt attributed the lack of citations to the challenge of building cases that will withstand court scrutiny, suggesting the agency will act on complaints later in its six-month limitations period for citing employers under the Occupational Safety and Health Act. But the lack of citations has more to do with the agency's loose enforcement approach, safety advocates say.

"Monday is going to be June, and they've issued one citation, in a pandemic," AFL-CIO Safety and Health Director Rebecca Reindel told Law360. "Is that really how you want to react during a crisis?"

OSHA, which fields and investigates worker complaints about unsafe job conditions, has taken heat during the pandemic for not doing enough to protect workers from COVID-19. Instead of issuing the binding emergency rule Democrats and labor unions have clamored for since early March, the agency has opted to recommend employers take certain steps outlined in industry-specific guidance memos and alerts.

Sweatt defended the agency's workplace safety efforts at Thursday's House Workforce Protections Subcommittee hearing alongside National Institute for Occupational Safety and Health Director John Howard, whose Centers for Disease Control and Prevention sub-office has set guidelines for worker safety during the pandemic. They argued guidance is easier to update to changing science than a hard-and-fast rule, and can be more readily tailored to fit different industries.

Nor does the lack of a strict, virus-specific safety rule hamstring the agency's enforcement, Sweatt told the subcommittee. She and her boss, Labor Secretary Eugene Scalia, have argued they can cite unsafe employers under certain existing safety rules and a general mandate that employers protect workers from "known hazards."

But the agency hasn't done much enforcing to date. As of Thursday, OSHA had fielded more than 4,500 coronavirus-related complaints from workers and closed more than 3,500, according to data on its website. The sole citation, issued against a Georgia nursing home May 18 for failing to report that a worker had been hospitalized after contracting COVID-19 on the job, marks the first time the agency has used its enforcement power in response to a virus-related complaint.

An OSHA spokesperson told Law360 the agency "conducts thorough inspections" unique to each case that "can take weeks and even months to complete." The agency is using this process to "rapidly address COVID-19 complaints," the spokesperson added. 

"OSHA's goal is to expeditiously remove workers from hazards, or eliminate hazards within the workplace," the spokesperson said. "The agency's current approach best achieves this goal."

That OSHA just issued its first citation isn't surprising given the agency's approach to enforcement, said Charlotte Brody, vice president of health initiatives for the Bluegreen Alliance, a coalition of worker and climate advocates.

Early in the pandemic, agency officials told complainants that OSHA did not have power to take action around COVID-19, Brody said, citing media reports. The agency also scaled back in-person inspections and relaxed rules for reporting when workers get sick on the job, which OSHA uses to identify problem workplaces. The agency has since resumed in-person inspections and told employers to report COVID-19 cases as best they can.

"There's clearly been some response to the criticism that they were doing nothing and workers were dying, which was good," Brody said, adding that these steps are no substitute for an emergency temporary standard.

While OSHA must ordinarily undergo a lengthy rulemaking process before issuing a standard, the OSH Act gives it power to set emergency rules in response to a "grave" workplace danger. The AFL-CIO recently sued OSHA seeking an order making the agency issue an ETS. Among other things, the labor federation argued the agency's existing enforcement tools are "toothless" in the face of the pandemic.

These tools include the so-called general duty clause Sweatt and Scalia have touted. To issue a citation under the general duty clause, OSHA must prove four things: that the cited employer failed to protect workers from a hazard, that it knew about the hazard, that the hazard caused or was likely to cause "death or serious physical harm," and that it was "feasible" for the employer to address the hazard.

This is much tougher than showing an employer failed to implement specific measures to protect workers under a COVID-19 rule, the AFL-CIO's Reindel said.

A hypothetical emergency standard would make employers take certain steps to protect workers or face fines, such as surveying exposure risks and making a plan for mitigating them that factors in worker feedback. This plan could include improving ventilation, staggering shifts and spacing workers apart.

"The general duty clause doesn't get into any of this," so it can't be wielded to punish an employer for not taking these measures, Reindel said. Similarly, rules on providing protective equipment and keeping workplaces clean are "somewhat related or relevant, but ... don't get at COVID-19 exposure," she said.

Sweatt painted a different picture of the agency's enforcement efforts than the advocates at Thursday's hearing. In many cases, the agency has used complaint investigations to notify employers of safety rules and alert them to risks, she said, calling it "one of the fastest ways to" get workers out of danger. If investigations show employers aren't protecting workers, "we will enforce," she said.

But this pledge means nothing when the agency's approach doesn't give it power to act, according to Deborah Berkowitz, the National Employment Law Project's worker health and safety program director.

"A worker can't sue their employer to provide safe conditions," said Berkowitz, a former OSHA policy adviser. "There's no private right of action, as they say, or ability to sue written into OSHA law. ... If OSHA doesn't act, there's nobody, nothing."

--Editing by Breda Lund and Kelly Duncan.

Update: This story has been updated with comment from OSHA. 

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