Labor & Employment Law Daily NELP says OSHA enforcement on the decline, enforceable COVID-19 guidance absent
Friday, May 1, 2020

NELP says OSHA enforcement on the decline, enforceable COVID-19 guidance absent

By Pamela Wolf, J.D.

OSHA has not issued any enforceable COVID-19-specific requirements, practices, or policies that employers must implement to protect workers, according to NELP.

A National Employment Law Project (NELP) briefing has put OSHA under a microscope and its findings allegedly show that the agency tasked with protecting workers in the most dangerous jobs has been seriously weakened under the Trump administration. As NELP sees it, it’s not surprising that during the COVID-19 pandemic, OSHA has “completely abdicated its responsibility to ensure that employers keep workers safe on the job.”

The briefing notes that 16,000-plus workers have already fallen ill and hundreds have died from COVID-19, including workers in hospitals, first response, nursing homes, meat and poultry plants, warehouses, grocery stores, and mass transit, and that the workers in many of these critical industries are disproportionately workers of color.

No enforceable coronavirus guidance. Yet, OSHA has not issued any enforceable COVID-19-specific requirements, practices, or policies that employers must implement to protect workers, according to NELP. Further, the federal agency not doing on-site enforcement and has no COVID-19-specific mandates for employers. But as the number of workers infected and dying from the coronavirus grows, and as the illness spreads in communities where workers live, it is clear that a voluntary approach to worker safety is not mitigating this public health disaster, NELP said. Communities of color are especially paying the price for what it calls a federal failure.

Number of inspectors dramatically down. Despite a promise by the Trump administration that the number of workplace safety and health inspectors would increase by 2019, OSHA now has the lowest number of on-board inspectors in the last 45 years, the briefing found. According to numbers just released, federal OSHA now has a total of 862 inspectors to cover millions of workplaces—lower than the number of inspectors released last March, when the agency announced it would be increasing the number of inspectors. At this staffing level, it would take the agency 165 years to inspect each workplace under its jurisdiction just once, according to NELP.

Top leadership jobs vacant. OSHA has also neglected to fill 42 percent of its top leadership career positions, leaving the agency without requisite expertise and direction to protect workers, NELP found. Key positions such as the director of enforcement, director of training, director of whistleblower protections, and regional directors have been vacant for years. Right now, these unfilled positions are partially staffed by employees who are also holding another job—doing two jobs at once.

Number of inspections down. The decrease in the number of inspectors has directly led to a precipitous drop in the overall number of inspections conducted by federal OSHA, as well as a drop in the number of more complicated inspections, according to the NELP briefing. New data reveal that the number of OSHA inspections conducted during the first three years of the Trump administration is thousands of inspections per year lower than any three-year period under the Bush or Obama administrations. The average number of OSHA inspections per year under the Trump administration is more than 5,000 inspections less per year than the average number of inspections under the Obama or Bush administrations.

The briefing points to a substantial body of empirical evidence—including a recent landmark study by the Business Schools of Harvard University and the University of California at Berkeley, as well as studies by the Rand Corporation—which found that OSHA inspections result in substantially and persistently reduced rates of serious injuries. When inspections are reduced, there is a direct impact on worker safety.

Fewer more complex inspections. As the total number of inspections declines, OSHA has also cut back on the number of more complicated, labor-intensive inspections. A lack of resources has led to:

  • A 25 percent drop in heat-related inspections; a 66 percent drop in the number of inspections related to musculoskeletal injuries;
  • A 27 percent drop in the number of inspections where OSHA measures workers’ chemical exposures; and
  • A 38 percent drop in the highest penalty “significant cases.”

NELP said that OSHA is cutting back on these critical inspections despite the fact that musculoskeletal disorders are the top occupational illness faced by workers, and the country has had record heat levels over the last few years.

Enforcement publicity minimal. Another move that has further weakened OSHA’s ability to ensure safe conditions is that the agency is only publicizing a handful of its inspection results, drastically reducing the number of enforcement press releases by more than 50 percent from the previous administration. While OSHA conducted more than 12,000 inspections in the second half of 2019, the agency only issued 84 press releases about violations cited. During the last six months of 2016, in contrast, OSHA issued 214 such releases.

NELP noted that these are not national releases but rather are released in the inspection locality. As a result, some companies may never hear about any OSHA activity. “The lack of publicity about agency enforcement actions seriously reduces any deterrent impact of OSHA’s already limited enforcement activities,” the briefing said. A new study clearly found that publicizing OSHA citations “led other facilities to substantially improve their compliance and experience fewer occupational injuries. The estimates imply that OSHA would need to conduct 210 additional inspections to achieve the same improvement in compliance as achieved with a single press release.”

Fatality and catastrophe inspections rise. OSHA’s inspection policies have for decades required the agency to conduct inspections after reports of a work-related fatality or catastrophe, defined as more than three workers hurt. The number of federal OSHA inspections opened as a result of a workplace fatality or catastrophe has increased under the Trump administration “to levels that are the highest in over a decade,” according to the briefing. OSHA opened investigations into 837 workplaces due to a fatality or catastrophe in FY 2017, but in FY 2019, that number rose by more than 150 workplaces to 978 opened investigations of fatalities or catastrophes.

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