United States Secretary of Labor Eugene Scalia defended OSHA's measures to protect workers during the COVID-19 pandemic, saying the administration's critics are obscuring what the agency has accomplished.
He elucidated OSHA's actions in a letter to Richard Trumka, president of American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The head of the nation's largest confederacy of unions criticized enforcement policies in a 20-page letter addressed to Scalia dated April 28.
Trumka wrote: "Since this crisis began, the Department of Labor (DOL) 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 added that the DOL, OSHA and Mine Safety and Health Administration (MSHA) have been "missing in action" during the global health crisis.
The AFL-CIO is comprised of 55 member unions totaling 12.5 million members representing industries including construction, maritime, postal, health care, transportation and manufacturing, among others.
Among the requests in Trumka's letter were recommendations for OSHA to:
- Initiate emergency standards and procedures 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 frontline 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 (PPE); and
- Work with the White House, FEMA, the Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC) and the states to expand rapid coronavirus testing and make it readily available to workers at high risk of workplace exposures to COVID-19.
Trumka also criticized the agency's recordkeeping guidance issued on April 10 that outlines how employers determine if a COVID-19 diagnosis is work-related based on objective evidence.
"This reckless, irresponsible action by OSHA comes as COVID-19 infections among essential workers are exploding, with thousands of work-related cases among these workers being reported by public health agencies and the media," he wrote. "Under this policy, employers will not have to identify those workers exposed and infected at work; these infections will not be documented or investigated—the first step in prevention—putting even more workers at risk and leading to more infections, illnesses and deaths in our workplaces and communities."
He also stated enforcement memorandums that allow for "good faith efforts" to be recognized to meet requirements "lay out for employers what they do not have to comply with or will not be responsible for, rather than lay out what they must do under their obligations of the law with federal oversight."
Scalia began his response to Trumka stating that while the correspondence helps the DOL and OSHA take future actions into consideration, the letter reflected some "basic misunderstandings."
He said, "First, your letter repeats the rhetorically gratifying but false and counterproductive assertion that the Department's Occupational Health and Safety Administration (OSHA) has been 'missing in action' since the pandemic. Yet, your letter proceeds to describe some of the many things OSHA has done to respond in this crisis."
Among the examples he provided were the agency's "extensive" interim guidance, working with the CDC to preserve the respirator supply, conducting thousands of COVID-related investigations, and advocating for whistleblower rights and protections.
"I appreciate that you may want different things from OSHA, but 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," Scalia explained.
The letter also said Trumka disparaged OSHA's guidelines as "only voluntary" which misleads employers about their obligations.
While Trumka urged the agency to adopt emergency interim standards, Scalia defended the actions of U.S. employers, writing, "employers are implementing measures to protect workers, in workplaces across the country. (And employers who fail to take steps are likely violating existing OSHA violations.) Moreover, the steps employers are making include the very measures your letters say should be in a new rule," including risk assessment, sanitation, PPE and training and education.
Scalia said industry-specific, tailored guidance is likely to be more effective than a blanket rule because employers can target their particular workplaces. He made one final point, saying that while coronavirus is a hazard in the workplace, it is not caused by work tasks themselves and cannot be viewed in the same regard as other workplace hazards.
He concluded, "the coronavirus presents grave and shifting challenges that require sustained attention; we evaluate daily what additional steps we can and should take."
