Labor & Employment Law Daily Debate continues between AFL-CIO, DOL over COVID-19 employee protections
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Wednesday, May 13, 2020

Debate continues between AFL-CIO, DOL over COVID-19 employee protections

By Wayne D. Garris Jr., J.D.

In the third entry in the war of words between the labor federation and the federal agency, the AFL-CIO’s president clarifies that it is agency leadership, not career employees, who have been “missing in action.”

AFL-CIO President Richard Trumka continued the debate between the labor federation and the U.S DOL over OSHA’s response to the COVID-19 pandemic. In a May 7th letter to DOL Secretary Eugene Scalia, Trumka admonished the agency for not issuing “a single citation related to COVID-19 for a violation of existing standard” and reiterated his demand for the agency to issue an emergency standard to require employers to take measures to protect employees from infection.

“Missing in Action.” The back and forth between Trumka and Scalia began on April 28 when Trumka issued a letter criticizing OSHA and the federal government for being “missing in action” during the pandemic. The letter called on OSHA to take more aggressive action to slow the spread of COVID-19 among employees such as issuing emergency temporary standards, enforcing existing OSHA standards, and requiring employers to report all worker infections and deaths to COVID-19.

Response. Two days later, Secretary Scalia responded to Trumka’s letter and 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.”

He continued: “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.”

Lack of leadership. In his response to Scalia, Trumka clarified that his characterization of OSHA as missing in action was not directed towards agency career employees but agency leadership. “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.

Encouragement only? Specifically, Trumka argued that the agency’s current approach of encouraging voluntary employer action and relying on existing directives was not enough to prevent the spread of the infection among workers. “Only a mandatory standard and enforcement of these measures will slow and stop the spread of this airborne transmissible virus.” The letter listed specific actions that employer’s must be required to take, such as:

  • Develop a COVID-19 worker safety and health plan, which is centered on exposure assessment and control;
  • Redesign workplaces so workers are at least six feet apart;
  • Increase and improve ventilation;
  • Provide adequate levels of certified respiratory protection and training;
  • Provide access to handwashing, and cleaning and disinfection of workspaces;
  • Provide rapid and reliable COVID-19 testing to workers;
  • Send workers home who are sick and pay them;
  • Identify other workers who have been exposed and quarantine them until they know they no longer are infected.

Congress demands action. Along with the AFL-CIO, congressional Democrats have also accused OSHA of not adequately responding to COVID-19. On April 21, House Democrats introduced The COVID-19 Every Worker Protection Act which would require OSHA to issue an emergency temporary standard for employers to protect employees from the spread of COVID-19. Several days later, four Democratic senators introduced a companion bill.

Democrats in the House and Senate noted that the bills were introduced, in part, because of their dissatisfaction with OSHA’s response to the pandemic. Over the past few months, we have seen the tragic consequences of the Department of Labor’s failure to take urgent action to protect frontline health care workers and other essential employees. Without an enforceable workplace safety standard to protect workers against COVID-19 infection, nurses, doctors, first responders, grocery store workers, food processors, delivery workers, and many others will continue to suffer alarming rates of infection that have already led to thousands of preventable illnesses and deaths,”said Bobby Scott (D-VA), chairman of the House Committee on Education &Labor. “The COVID-19 Every Worker Protection Act directs OSHA to issue a standard that would clearly define employers’ responsibility and establish accountability to maintain a safe workplace for employees.”

As of May 10, neither DOL nor Secretary Scalia have responded to Trumka’s May 7th letter.

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