One would think that with a pandemic crashing into our society, OSHA would lead the way in protecting U.S workers. But, no. The Occupational Safety Health Administration is taking a few steps backward. Senior OSHA staff had a six page memo prepared and ready to issue in the Spring of 2020, that would institute protections for workers. The memo was similar to one issued in 2009 in response to the H1N1 virus epidemic. But, the memo was never issued. Eugene Scalia, son of the former Supreme Court justice, likely prevented issuance of the work place protections. He heads the Department of Labor, which oversees OSHA. Mr. Scalia, a former partner at Gibson Dunn Crutcher, where he practiced employment law as a defense lawyer. He acquired some notoriety for overturning government employment regulations.
Instead, OSHA issued a memo requiring employers to record any COVID19 infections that were “work-related.” A career OSHA lawyer, Joseph Woodward, explained that the April memo did not even require employers to inform workers that a co-worker had tested positive for the virus. After much criticism, the April memo was rescinded. No protective guidance was ever issued instead.
OSHA has reduced the number of inspectors. It now has the fewest number of inspectors in 45 years. 42% of senior OSHA leadership positions remain vacant. OSHA enforces some 20 federal whistle blower statutes. Work place whistle blower complaints have surged. Yet, five whistle blower investigator positions remain unfilled.
In April, McDonald’s workers in Chicago submitted two written complaints about unsafe working conditions to OSHA. OSHA simply told McDonald’s management to deal with it. The McDonald’s franchisees were not practicing social distancing. Two workers contacted the virus, but management did not inform the co-workers. The McDonald’s workers eventually went on strike due to the unsafe working conditions. The workers later filed complaints with the Chicago Board of Health. A state district court eventually issued a preliminary injunction against McDonald’s forcing them to take precautions.
When the meat-packing plants erupted with infections in April and May, Pres. Trump issued an executive order designating meat-packing plants as “critical” to national defense. That designation meant the plants had to remain open. OSHA issued no guidance on how to stay open safely. Later, when three workers died at one plant from the virus, OSHA conducted an inspection. But, the inspection was hurried and not detailed. Many issues remain in the meat-packing plants which the inspection glossed over.
During one lawsuit over unsafe conditions at a meat-packing plant, an assistant area director for OSHA testified that senior OSHA officials had designated all COVID19 complaints as “non-official.” That designation meant physical inspections were not required. OSHA has dropped the ball for American workers.
See the New Yorker report for more information.