By Kevin Stawicki

Law360 (April 29, 2020, 9:07 PM EDT) -- Democratic lawmakers said Wednesday the economy can't safely reopen unless the Occupational Health and Safety Administration issues emergency rules making employers adopt workplace infectious disease plans and withdraws "harmful" guidance that gives employers a pass on reporting COVID-19 cases.

Sens. Patty Murray, D-Wash., and Tammy Baldwin, D-Wis., and 28 of their Democratic and independent colleagues urged Labor Secretary Eugene Scalia to direct OSHA to issue an "emergency temporary standard" that would make all employers safeguard against the spread of the novel coronavirus and protect workers from retaliation if they raise safety concerns.

"Such protections are a matter of life and death for the workers themselves but are also vital to ensuring workplaces are not hotbeds of infection endangering workers, customers, and their families and communities," the senators wrote in a letter to Scalia.

The emergency temporary standard would legally require employers to implement workplace infection control and risk assessment plans, issue guidelines for social distancing, provide personal protective equipment, ensure proper sanitation and hand-washing facilities and provide wage protections for workers infected by COVID-19.

Additionally, the senators urged the agency to issue more interpretations about its existing standards, expand its enforcement capabilities, suspend recent guidance that lets employers fail to report workers infected by COVID-19 and withdraw enforcement policies that don't require on-site inspections for most worker complaints related to the virus.

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 has issued important guidance and will continue to respond to workplace complaints and take appropriate enforcement action.

The senators' latest public demand comes in the wake of months of calls by labor leaders and workers' advocates for OSHA to adopt the emergency temporary standard before the country attempts to return to normal. Democratic lawmakers have introduced a number of bills to force OSHA to issue the emergency standard.

In March, the House Committee on Education and Labor introduced a bill that would require the agency to issue the emergency temporary standard only for the health care industry. Their attempts to get provisions of the bill into the second stimulus package ultimately failed after they were met with strong industry opposition.

Last week, the House and Senate introduced companion bills to force the federal worker safety watchdog to issue the emergency standard for all employers. A member of the committee told Law360 that they intend to roll parts of the bill into the next stimulus package.

Wednesday's letter also comes amid rising skepticism about the federal government's response to the pandemic as Scalia and OSHA have made made it increasingly 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 faced by the agency and employers.

The National Employment Law Project recently reported that OSHA is operating with the lowest number of inspectors in 45 years — only 862 at the beginning of the year — lower than the 952 inspectors by the end of the Obama administration and 1,469 in 1980.

"At this staffing level, it would take the agency a whopping 165 years to inspect each workplace under its jurisdiction just once," the report states.

But according to data recently released by OSHA, there has been an uptick in federal inspections opened across the country, with 105 inspections with fatality or catastrophe classifications as of April 28.

The COVID-19 Response Summary also states that as of April 28, the agency received 2,884 coronavirus-related federal complaints and closed 1,831 of them. As for the state programs, the report said 7,408 complaints were received and 2,215 were closed, according to the report.

On a call last week with reporters, OSHA's principal deputy assistant secretary, Loren Sweatt, said the DOL received about 2,400 coronavirus-related complaints from the start of February through April 20 and has resolved about 1,400 of them.

But the senators' letter on Wednesday said that more enforcement protections are needed and that all workplace inspections must be on-site. The letter didn't cite many specifics beyond reports from previous OSHA officials criticizing the agency's response and comments by the head of the United Food and Commercial Workers union that employers "don't have a central notice about what they should do from OSHA."

Meanwhile, in the House on Wednesday another group took another approach to protect essential workers outside of the health care industry by floating a bill that would create an interagency worker safety task force.

Under the bill introduced by Reps. Haley Stevens, D-Mich.,  and Chris Pappas, D-N.H., Scalia would be in charge of a task force made up of the departments of Labor, Commerce, Transportation, Defense and Homeland Security, plus the U.S. Food and Drug Administration and any other agency he deems relevant to focus on how to protect essential workers.

The task force would release more guidance on how to prevent the spread of COVID-19.

"This legislation establishes a coordinated front from our federal agencies so that all impacted workplaces can operate with the full understanding of how to protect employees and others from spreading COVID-19, and requires the federal government to share information in real time to provide these assurances to our labor force," Stevens said in a statement.

--Editing by John Campbell.

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