ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Wednesday, November 18, 2020


We have posted in the past (as part of our virtual symposium) about the extent to which workers in essential positions have been left without legal recourse as their employers fail to take adequate precautions to protect them from COVID infection.  Rachel Arnow-Richman covered the topic here and hereJeff Sovern and Ben Davis posted about the possibility that third parties who patronize businesses can be without legal recourse if they contract COVID due to the business's lack of precaution.  

Eugene ScaliaOne response to businesses failing to take reasonable precautions might be that individual suits seeking to hold employers liable for workplace infection are inefficient and are unlikely to succeed because the odds are stacked against lone employees who sue large corporations.  The better response would be government regulation and sanction of negligent employers under the authority of the Occupational Safety and Health Administration (OSHA).

Unfortunately, according to this New Yorker article by Eyal Press, the Trump adminsitration's Labor Secretary, Eugene Scalia pictured), has no interest in investigating companies whose workers are exposed to COVID at work.  According to the article, like many other Trump appointees, Mr. Scalia previously made a career of opposing the policies of the agency he now heads.  Unlike some of the others, he is competent, experienced, and an expert in the legal issues that his agency addresses.  His take on those legal issues is highly anti-regulatory.  Some highlights:

  • In response to over 10,000 complaints regarding OSHA violations since the pandemic began, the Department of Labor (the Department) has issued a grand total of  two citations;
  • On April 10th, the  Department issued a memo relieving employers of the duty to keep records about "work-related" infections;
  • That memo drew protests and so withdrawn, but it was replaced this Fall with one saying that employers do not have to report COVID-19 hospitalizations unless they occur within twenty-four hours of a workplace exposure (which almost never happens); and
  • The Department now has the fewest inspectors it has had in 45 years, and 42% of its leadership positions are vacant.

The article is long but highly recommended.

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