Labor & Employment Law Daily House subcommittee asks whether OSHA is failing in its COVID-19 response or appropriately using earlier pandemic playbook
Wednesday, June 3, 2020

House subcommittee asks whether OSHA is failing in its COVID-19 response or appropriately using earlier pandemic playbook

By Pamela Wolf, J.D.

While comparisons to earlier pandemics may be tempting, are they really plausible, given the more deadly and unknown attributes of COVID-19?

On May 28, there were sharply diverging views of OSHA’s response to the COVID-19 pandemic on display at a House Education and Labor Subcommittee on Workforce Protections hearing, “Examining the Federal Government’s Actions to Protect Workers from COVID-19.” While some lawmakers clearly saw OSHA as failing its obligations to protect workers, at least one pointed out that the health and safety agency is doing what it has done in earlier pandemics.

The subcommittee also heard testimony about the CDC’s actions.

NIOSH and CDC are on the job.John Howard, Director of the National Institute for Occupational Safety and Health (NIOSH), which is part of the CDC, reported that as of May 21, 2020, there have been 1,551,095 total cases of COVID-19 reported to CDC. “Many of these cases are in ‘working-age’ adults, with over 900,000 cases in those aged 18-64,” he explained in his written testimony. “In this age group, over 57,000 are cases known to be among healthcare workers. It is not known how many of these infections occurred as a result of their work. Several states are reporting numbers of cases among healthcare personnel on their websites.”

Pandemic responses. Howard said the actions that NIOSH has taken as part of the CDC’s response to the pandemic fall into three main categories:

  • Actions to increase and augment the supply of respiratory protective devices, a key component of personal protective equipment (PPE) that workers use as the last line of defense against exposure to toxic and infectious agents.
  • NIOSH staff, with an expertise in workplace safety and health and trained in industrial hygiene, engineering, medicine, and epidemiology, are among members of CDC field teams deployed to carry out site visits at meat processing plants. These teams are responding to requests from state and local health departments, factories, and plants engaged in critical infrastructure activities.
  • NIOSH is working in close partnership with CDC colleagues, as well as those in the Food and Drug Administration, OSHA, and the Department of Agriculture’s Food Safety and Inspection Service, to develop information and guidelines for employers and employees to work safely and reduce their risk of workplace exposure to the SARS-CoV-2 virus that causes COVID-19 disease.

Working tirelessly. “NIOSH and other CDC centers have been working tirelessly to protect workers from exposures to the SARS-CoV-2 virus in the course of their employment,” according to Howard. “We have responded to the unique challenges of this COVID-19 pandemic in multiple areas that impact workers. We continue to assist manufacturers of personal protective equipment and innovators ability to increase the supply of reliable personal protective equipment that workers depend on every day.”

The agencies are also deploying scientists and engineers on field investigations to critical infrastructure plants—particularly those in meat and poultry processing—to examine how best to protect critical infrastructure workers. The agencies are also developing and disseminating through fact sheets, guidance, and videos the scientific information learned from field efforts and from their experience and expertise in worker protection.

OSHA on it, but where’s the data? For her part, in written testimony, OSHA’s Principal Deputy Assistant Secretary Loren Sweatt provided no statistics on the number of COVID-19-related complaints or inspections that the agency has conducted—her rather short statement stuck only to non-COVID-19 related data.

The lack of data stands stark in contrast to other sweeping statements made by Sweatt, such as: “OSHA’s efforts to address COVID-19 have been its top priority since February Although the pandemic has changed the way OSHA completes its mission, it has never faltered in its commitment to ensure employers provide a workplace free of hazards.”

Quick pivot to guidance. “OSHA quickly pivoted to focus intensely on giving employers and workers the guidance they need to work safely in this rapidly changing situation; where appropriate, OSHA has also enforced safety and health requirements,” Sweatt explained.

Existing standards. She also said that while extensive guidance “is important as the rapidly changing dynamic of this pandemic continues, it is important to recognize OSHA also has existing standards that serve as the basis for its COVID-19 enforcement” including:

  • Respiratory protection,
  • PPE,
  • Eye and face protection,
  • Sanitation, and
  • Hazard communication.

Is COVID-19 a “grave danger” to workers? Subcommittee Chairwoman Alma Adams (D-N.C.) pointed out that when she asked Sweatt during the hearing whether the COVID-19 pandemic “presents a grave danger to workers,” the OSHA head refused to answer. Sweatt said she thought that Adams was asking that question because it is related to an emergency temporary standard (ETS).

In contrast to Sweatt’s refusal to answer, her NIOSH counterpart did respond to the same question, answering in the affirmative.

Under the OSH Act, OSHA “shall provide for an Emergency Temporary Standard” if it determines “that employees are exposed to a grave danger ” from “new hazards,” and “that such emergency standard is necessary to protect employees from such danger.” Members of Congress and unions, among others, have pressed the Department of Labor, to no avail, to issue a COVID-19-related ETS.

Yet the coronavirus “has caused more deaths among workers in a shorter period of time than any other health emergency since the creation of [OSHA] 50 years ago,” according to Adams. The Congresswoman also explained that current data likely underestimate the toll of COVID-19 on workers and their families, because OSHA has no national system for tracking workplace infections.

Not proactive, only reactive. Congressman Andy Levin (D-Mich.) challenged Sweatt over OSHA’s refusal to proactively issue an ETS during the coronavirus pandemic. “If your agency inspects workplaces only after a worker has died, you are not preventing workplace infections,” he said. He criticized OSHA’s failure to issue an ETS and noted that three-quarters of OSHA’s coronavirus-related inspections are fatality investigations, meaning a worker has already died from a COVID-19 infection. This is not proactive, but rather reactive, he observed.

Not even tracking infections. As it turns out, OSHA is not even tracking COVID-19 infections at all in workplaces, a fact Sweatt conceded in an exchange with Representative Pramila Jayapal (D-Wash.). In a press release, Jayapal noted that on April 10, OSHA relaxed employers’ obligation to record work-related COVID-19 cases, with the exception of “the healthcare industry, emergency response organizations and correctional institutions.” On May 20, this guidance was reversed, and the agency began requiring all employers to record work-related COVID-19 cases.

Just one safety citation issued. Representative Suzanne Bonamici (D-Or.) asked Sweatt how many COVID-19 related citations were issued. Sweatt replied that only one had been issued. Bonamici clarified that this single COVID-19-related citation was for a recordkeeping violation.

One-size-fits-all ETS inherently difficult. In his opening statement, Representative Bradley Byrne (R-Ala.), made some remarks that could explain OSHA’s failure to take further action, such as issuing an ETS. He observed that COVID-19 affects different people in different ways. “Many people who test positive have no or mild symptoms, but a small percentage get very ill, and some of them, unfortunately, pass away,” he said. “The two groups most likely to become very ill are those over 65, who make up 80 percent of all deaths, and those with underlying health conditions as listed by the CDC.”

Byrne also noted that COVID-19 presents varying levels of risk for workers in different types of jobs. An office worker who does not interact with the public, for example, faces much lower risk than a nurse in an ICU ward. These factors make it inherently difficult to come up “with a reliable single standard for workplace safety, whether it’s for infectious diseases in general or COVID-19 specifically,” according to Byrne.

OSHA doing what it did before. Byrne also pointed to other pandemics, SARS in the 2000s during the Bush administration, and MERS, H1N1 influenza, and Ebola during the Obama administration, saying “OSHA didn’t issue a new standard but, instead, enforced existing standards and issued guidance, which in turn could be the basis for action against an employer under the General Duty Clause of the OSHA statute.” The Congressman also cited the testimony of Acting OSHA Assistant Secretary Jordan Barab before the same committee during the H1N1 flu pandemic in May 2009. “He [Barab] said that OSHA had created guidance ‘to help employers determine the most appropriate work practices and precautions to limit the impact of the pandemic’ and ‘because safety risks are greater in certain workplaces, OSHA is focusing its direct efforts on educating employers and employees in the higher-risk exposure categories.’

At that time “OSHA issued an ‘Occupational Risk Pyramid’ to categorize workers’ risk which demonstrated that only a small portion of employees were at the highest exposure-risk level,” according to Byrne. Barab also specifically referenced standards already in place for personal protective equipment and respirators, and said that “OSHA would use the OSH Act’s general duty clause to ‘ensure that employers follow the practices that public health experts agree are necessary to protect workers’ health.’” Barab further quoted “President Obama’s assessment of the situation as being one of ‘cause for deep concern, but not panic.’”

Does the pandemic comparison really work? Byrne’s point in reciting all of this is that OSHA is now taking actions similar to those it has taken in past pandemics. But it must be noted that the parallels between the H1N1 influenza and the current coronavirus pandemic only go so far—COVID-19 is novel virus that is highly contagious and has already been attributed to the death of more than 100,000 people in the United States. Compare that to the 12,469 deaths caused by H1N1.

Problems with issuing an ETS. Byrne also cited to problems with requiring a standard:

  • We are still learning about this disease and we just don’t know enough information to meet the level necessary and appropriate to construct an adequate emergency temporary standard and a permanent federal regulation. This is why the guidance documents already issued are so useful; they can be issued relatively quickly and modified as we learn more, he stressed. Further, a standard at this point would be “an unproductive burden for businesses already struggling to reopen, potentially exposing them to unnecessary liability risks during an already challenging time, and would do little to advance workplace safety.”
  • Setting a standard just takes too long, on average, taking OSHA seven years to compile all the data necessary and meet all the regulatory requirements for issuing a standard. “The last time OSHA issued an ETS was in 1983 and that one was overturned because OSHA couldn’t meet the statutory threshold requirements for issuance. Indeed, OSHA has lost more ETS cases in federal courts than it has won for this same reason,” Byrne concluded.

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