Labor unions, the media and political opponents of the Trump Administration continue to beat the drum about how the federal government, and the Occupational Safety and Health Administration in particular, has failed to act to protect workers adequately from the Coronavirus pandemic
Politicization of the pandemic began just as soon as it started, fueled by hatred of President Trump and a contentious national election campaign.
That bias was on view July 15 when Virginia Governor Ralph Northam (D) took a swipe at Trump while announcing the state’s Emergency Temporary Standard applicable to employers. in the country
“In the face of federal inaction, Virginia has stepped up to protect workers from Covid-19, creating the nation’s first enforceable workplace safety requirements,” he declared. (Actually, Virginia wasn’t the first – Washington State issued its own ETS in May).
Virginia’s emergency rule covers many of the same topics OSHA has developed in a series of guidances addressing the Coronavirus, which have continued to evolve since the pandemic began and were developed with the assistance of the Centers of Disease Control and Prevention (CDC). Some of them target specific industries while others are aimed at employers in general.
The Virginia rule includes a provision protecting employers who comply with CDC guidelines dealing with mitigation of Covid-19 in the workplace, so presumably following OSHA’s advice will get you off the hook in Virginia. This also undermines Northam’s charge that the federal government has been inactive.
The AFL-CIO filed suit against OSHA this spring asking a court to order the agency to promulgate an ETS. The federal court tossed out the lawsuit, ruling that due to the pandemic it was reasonable for OSHA to decide not to create an ETS.
OSHA’s critics like AFL-CIO President Richard Trumka argue that the agency’s guidances are supposedly not legally binding the same way a rule or standard would be. However, that ignores the fact that OSHA can take enforcement actions against employers who don’t follow its guidances.
The agency can and frequently does take action under existing regulations that deal with some of the same issues referred to in its guidances. OSHA also can act against any employer under the General Duty Clause, which is part of the law that created OSHA.
The General Duty Clause imposes on employers an overall legal obligation to provide and safe and healthy workplace for their employees, even in the absence of specific regulations. This allows the agency to take enforcement action against any employer who creates an unsafe and unhealthy work environment.
Interestingly, California – criticized by employers in the past for heavy handed enforcement – has chosen to pursue an approach similar to federal OSHA. issuing guidelines instead of rules and encouraging voluntary resolutions by employers. As a result, Gov. Gavin Newsom (D) has been attacked by unions for choosing an approach similar to OSHA’s.
In a separate development, OSHA reported that between Feb. 1 and July 23 it received a total of 7,173 complaints and state OSHA programs got 18,5523 complaints from workers regarding Covid-19 in the workplace. The majority of these – 6,208 federal and 11,607 state cases – had already been closed as of the report.
The complaints involve employers from a variety of industries and the allegations cover such things as not being provided with adequate personal protective equipment, improper response planning, and non-compliance with guidelines provided by the CDC and orders issued by local public health authorities.
Lower numbers of complaints were generated by several other industry segments. In some of these, unions and their supporters have mounted public campaigns to paint the employers and OSHA as being negligent. Only 140 complaints came from employees in general warehousing and storage; and 87 from couriers and express delivery services. By July 23, restaurants had generated a total of 322 complaints, with 222 for construction.
The bulk of the complaints came from industries where it is understandable that employees would fear contracting the Coronavirus, including healthcare and related services (1,890 complaints); the retail trade industry, including grocery stores (819); and the U.S. Postal Service (365).
In terms of geographic spread, OSHA Region 5, made up of Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin, reported 1,626 complaints – the largest regional total through July 23. Coming in second was Region 4, comprised of Alabama, Georgia, Florida, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee, which reported 1,474 complaints
“OSHA citations may only be issued for violations that currently exist or existed in the past six months, so employers should not expect the trend of Covid-19 related claims to end while the pandemic persists,” notes Darra James Coleman, and attorney with the law firm of Nexsen Pruet.