Labor & Employment Law Daily COVID-19 worker protections: AFL-CIO president engages Secretary of Labor
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Tuesday, May 5, 2020

COVID-19 worker protections: AFL-CIO president engages Secretary of Labor

By Pamela Wolf, J.D.

While Richard Trumka says that OSHA has been “missing in action” and should do more, Eugene Scalia maps out the agency’s flexible approach and enforcement tools.

On April 28, AFL-CIO President Richard Trumka petitioned the Labor Department to take immediate action to protect the safety and health of workers from exposure to COVID-19 on the job. As Trumka sees it, the DOL is not fulfilling its responsibilities to workers. Responding quickly, the Secretary of Labor disputed many of many of Trumka’s contentions and offered his own take on what OSHA has been doing to protect workers during the pandemic.

Sent on Workers Memorial Day to Labor Secretary Eugene Scalia, the AFL-CIO letter “is in memory of our union brothers and sisters who have passed away from COVID19, along with the 275 workers who pass away from other work-related injuries and illnesses each day,” the union president wrote.

Inadequate response to COVID-19. Trumka harshly criticized the DOL’s response to the coronavirus pandemic. “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,” he said.

“As we face the greatest worker safety challenge and crisis of our lifetime, the U.S. Department of Labor, the Occupational Safety and Health Administration and Mine Safety and Health Administration are missing in action,” according to the union president.

Change course and take action. Trumka’s letter and press release laid out what he asserted the DOL and OSHA should do immediately:

  • Issue emergency temporary standards to protect health care workers, first responders, essential workers, and other workers returning to work from COVID-19 exposure and infection;
  • Fully, aggressively, and expeditiously enforce existing OSHA standards and regulations and employers’ general duty obligation to protect workers from recognized hazards, including exposure to COVID-19;
  • Utilize OSHA’s full authority to expand its enforcement of safety and health requirements;
  • Require employer recording and reporting of all worker infections and deaths due to COVID-19;
  • Protect workers from employer retaliation for taking action to protect themselves and co-workers from COVID-19;
  • Protect the nation’s miners from workplace exposure to COVID-19;
  • Protect public sector workers;
  • Protect front-line OSHA and MSHA inspectors;
  • Provide training and education for workers at risk of workplace exposure to COVID-19, and guidance and assistance to employers to protect workers and limit the spread of virus in workplaces and communities;
  • Work with the White House, the Federal Emergency Management Agency (FEMA) and the National Institute for Occupational Safety and Health to immediately and massively expand the supply and availability of personal protective equipment; and
  • Work with the White House, FEMA, the Department of Health and Human Services, the Centers for Disease Control and Prevention and the states to expand rapid coronavirus testing and make it readily available to workers at high risk of workplace exposures to COVID-19.

Scalia responds. In an April 30 letter, apparently obtained and published by Bloomberg Law, Scalia swiftly responded, acknowledging that letters such as Trumka’s can help the DOL do its job better and that Trumka had “made some points and suggestions” that the DOL “will give further consideration.”

The Labor Secretary then rebutted many of Trumka’s contentions. “First, your letter repeats the rhetorically gratifying but false and counterproductive assertion that the Department’s Occupational Safety and Health Administration (OSHA) has been ‘missing in action’ during the pandemic.”

Scalia said that while he appreciated that Trumka may want different actions from OSHA, “to obscure the guidance OSHA has given, and to suggest OSHA is indifferent to worker protection and enforcement, is to mislead employers about their duties and workers about their rights.”

“OSHA’s website contains extensive guidance on the virus for the benefit of workers and employers and in fact, the cop is on the beat,” according to Scalia. “The Administration’s critics undermine worker safety by telling companies otherwise.”

Compliance not just “voluntary.” Addressing the notion that OSHA’s guidelines are “only voluntary,” suggesting employers have no compliance obligations, Scalia said: “That is false—and again risks misleading employers about their duties.”

Here, the Labor Secretary pointed to “the many legal authorities OSHA possesses to address employers who fail to take appropriate steps to protect their workers,” noting also that Trumka’s letter lists these same authorities. Those include the OSH Act’s “general duty clause” and “OSHA rules on respiratory protection, personal protective equipment, eye and face protection, sanitation, and hazard communication.” Further, and as Trumka’s letter also indicated, OSHA’s coronavirus guidance, together with CDC guidance and industry standards, “support an enforcement action under the general duty clause.”

The need for flexibility. Scalia also argued that issuing an emergency temporary standard is not the right way to go because, among other reasons, employers are already implementing measures to protect workers, and that those who fail to do so are likely violating existing OSHA obligations.

“OSHA’s industry-specific guidance is far more informative for workers and companies about the steps to be taken in their particular workplaces,” Scalia said. “That is one of the reasons OSHA has considered tailored guidance to be more valuable than the rule you describe.”

Acknowledging the novelty of the virus, the little “scientific certainty” surrounding it, and the fact that things are changing day to day, Scalia also said: “Guidelines allow flexibility and responsiveness to that change, in a way a rule would not.”

Guidelines don’t substitute for enforcement. The Labor Secretary made clear that guidelines and enforcement are separate avenues. “But to repeat, OSHA will not use guidelines as a substitute for enforcement—rather, the agency has the tools and intent to pursue both avenues; that is our two-pronged approach,” Scalia stressed.

Is COVID-19 a workplace hazard? While coronavirus is a hazard in the workplace, it’s also not unique to the workplace or—except for certain industries such as health care—caused by work tasks themselves, Scalia also pointed out. Although this does not lessen the need for employers to address the virus, he suggested it also means that the virus “cannot be viewed in the same way as other workplace hazards.”

Here, Scalia disagreed with Trumka’s suggestion that OSHA issue a rule requiring all employers to report all worker infections within 24 hours, regardless of whether they are determined to be work-related. “What you propose would burden employers and overwhelm OSHA with information that—you concede—is ‘not… work-related,’” the Labor Secretary wrote. “The proposal illustrates how the measures one might ordinarily prescribe will not work here.”

“I certainly share your concern for the workers who have died from COVID-19,” Scalia said. “And I respect all that the AFL-CIO and other unions have done through the years to protect workers. I ask that you show due respect for the steps the dedicated men and women at OSHA are taking now.”

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