AFL-CIO Calls DOL's Pandemic Response 'Totally Inadequate'

By Kevin Stawicki
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Law360 (April 28, 2020, 9:19 PM EDT) -- The AFL-CIO added its voice Tuesday to a chorus of calls for the Occupational Safety and Health Administration to issue emergency safety regulations in response to the novel coronavirus, calling the U.S. Department of Labor's response to the pandemic "chaotic" and "inadequate."  

AFL-CIO President Richard Trumka doubled down on his calls for OSHA to issue an "emergency temporary standard" making employers 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. He also called for the Mine Safety and Health Administration to step up and issue similar emergency standards.

"Since this crisis began, the Department of Labor and federal government have failed to meet their obligation and duty to protect workers; the government's response has been delinquent, delayed, disorganized, chaotic and totally inadequate," Trumka said in a letter to Labor Secretary Eugene Scalia.

The most effective way to reverse the continued failure to protect workers is for OSHA to issue the emergency temporary standard requiring all employers to limit workers' exposure to the coronavirus or risk fines, Trumka said.

"These emergency standards must reflect the precautionary principle — that in the face of a novel virus, employers must not wait for scientific certainty of harm before implementing precautions to protect workers — and be based on the currently available science," he said.

Trumka is far from alone in his call for federal agencies to respond to COVID-19's effect on workers across the country. Last week, the U.S. House of Representatives and U.S. Senate introduced companion bills to require OSHA to issue the emergency temporary standard.

"Workers are risking their lives during this public health emergency to keep our citizens safe and they need proper protection from the virus at work," Sen. Sherrod Brown, D-Ohio, who introduced the bill, said in a statement. "We need a real plan to reopen the economy safely with enforceable safety standards that will enable employers to adequately protect both workers and customers."

The efforts proposed by lawmakers are being demanded by workers advocates nationwide, like Debbie Berkowitz, director of the National Employment Law Project's Worker Safety and Health program.

"Workers are dying by the hundreds, getting sick at work by the thousands," Berkowitz said. "If this is not an emergency, what is?"

"If you could not justify an emergency standard to protect workers from the coronavirus then you probably never could," said Michael Carome, director of Public Citizen's health research group. "We have front line workers in the health care industry and other essential industries who are putting their lives at risk in the absence of a standard that would better protect them. This is the situation for which the emergency temporary standard authority was intended to address."

David Michaels, an epidemiologist who headed OSHA during the Obama administration, said "one of the reasons things have gotten so bad for workers is the failure of the administration to issue and enforce regulations that protect workers."

These calls come as Scalia and OSHA have made clear that their nonbinding guidance related to COVID-19 is sufficient and that they have no intentions to impose new regulations because of resource constraints placed on the agency and employers.

But Trumka said those arguments are unacceptable as millions of workers face exposure to COVID-19, while tens of thousands have been infected and hundreds have died. As of April 23, 21,804 health care workers had been infected and 71 died, according to the U.S. Centers for Disease Control and Prevention.

Within the past few weeks, OSHA has issued tips for manufacturing, retail, delivery and other groups of workers instructing employers to provide personal protective equipment, clean surfaces and use drive-thru windows to help prevent the virus' spread. While Scalia has maintained that the guidance is sufficient to protect workers, Trumka said "too many employers are disregarding safety and health standards and their general duty obligation to protect workers against recognized hazards."

By rolling back regulations requiring employers to record COVID-19 infections for essential workers, conducting limited investigations of workplaces in the health care industry and having a "totally deficient" enforcement response plan for industries beyond health care that treats worker complaints informally, OSHA had made clear that employers won't be held accountable, Trumka said.

Other enforcement measures that have stressed what the agency won't be enforcing, such as respiratory protection requirements, have only further exposed the inadequacy of the response, Trumka said. The only solution is for OSHA to reverse course and start using all of its enforcement capabilities, require reporting of all COVID-19 infections and deaths and fully enforce all existing standards and regulations, he said.

Scalia continues to maintain that OSHA is using the enforcement tools at its disposal and will use them if necessary. An OSHA spokesperson reiterated that the agency is continuing to issue important guidance and responding to workplace complaints.

"Even though OSHA has up to six months to issue citations, this national emergency calls for swift enforcement action by the agency so that hazards can be corrected immediately, lives can be saved and the virus can be defeated," Trumka said. "Six months from now will be too late."

--Additional reporting by Braden Campbell. Editing by Haylee Pearl.

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

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