Wednesday, June 17, 2020
I am co-author --with Tom McGarity of University of Texas School of Law and Sid Shapiro of Wake Forest Law -- of a new report titled, "Protecting Workers in a Pandemic: What the Federal Government Should Be Doing." The report has been issued today by the Center for Progressive Reform. Tom, Sid, and I are scholar-members of that organization. A link to the report is here. An executive summary follows:
The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. Moreover, for a variety of reasons, that risk falls disproportionately on people of color and low-income workers – people whose economic circumstances and less reliable access to health care renders them all the more vulnerable. These workers are being treated as expendable, forced by the threat of losing their jobs to accept risks no member of Congress or White House staffer would accept for themselves or their families.
During the period when much of the nation was on lockdown – roughly the middle of March to the end of April 2020 – the evidence that workplace transmission of COVID-19 is a very serious threat became all too clear. Workers in a variety of "essential industries" – health care, meatpacking, transportation, warehousing, and more – suffered from localized outbreaks.
Public health officials warn that, in order to avoid a repetition of these outbreaks on a far larger scale, we must take appropriate precautions. In the workplace, that typically includes limiting interactions and expanding distancing among workers, rigorous and frequent sanitization and cleaning, engineering controls such as plexiglass barriers and adequate ventilation systems, medical-grade protective clothing, and masks for workers. Even so, such measures are likely to slow but not stop transmission – effectively bending the curve of transmission so as to buy time for a vaccine or improved treatment of COVID-19.
Implementing such measures requires a nationwide commitment built on determined leadership, robust standard-setting and enforcement, and education and research about what works and what does not. Unfortunately, the federal government has largely failed to provide such leadership and has instead used the pandemic as a rationale to roll back enforcement of existing workplace safety measures. Instead of seizing the opportunity, with both carrot and stick, to ensure that the nation's workers are not subjected to significant risks on the job, the Occupational Safety and Health Administration (OSHA) and other protector agencies have shrunk into the background. Meanwhile, conservative leaders and the White House are pushing to insulate businesses from litigation brought by workers and customers who are harmed by the failure to institute appropriate safety measures – thus incentivizing unscrupulous businesses to ignore the risks in the pursuit of profit.
While the federal government has shown little interest in taking a lead role in protecting workers from the coronavirus, such leadership is not beyond its reach. In the pages that follow, we describe the risks to workers, with a particular focus on "essential" industries. We review the existing workplace safety authorities at the disposal of OSHA, several other agencies of the federal government, and state labor agencies. We also discuss the various, limited rights workers have to protect themselves or to demand that their employers provide protection, the role of unions and workers' compensation. Finally, we discuss the likely impact of the proposed liability shield for businesses.
Throughout the paper, we offer a series of recommendations, some specific to preventing the spread of the virus, and some that apply the lessons of the virus to enduring workplace safety issues. These recommendations include:
- The Occupational Safety and Health Administration (OSHA) should promulgate an emergency temporary standard on pathogen protection for workplaces where employees are at high risk of exposure to COVID-19.
- OSHA should promulgate a permanent standard for pathogens in workplaces where such pathogens pose a significant risk to workers.
- OSHA should aggressively enforce the general duty clause of the Occupational Safety and Health Act by issuing citations to any company that fails to comply with generally recognized pathogen protection practices, drawing on OSHA and CDC guidelines as well as other indicia of proper safety practices relevant to pathogens as evidence of recognized safety practices.
- The United States Department of Agriculture should require that meat and poultry packing plants reduce line speeds to a level at which employees can maintain a safe distance between one another and have time to maintain personal hygiene.
- The Federal Aviation Administration should promulgate interim final regulations protecting aircraft crew members from the risk of contracting COVID-19 drawing on OSHA and CDC guidance as well as other indicia of proper safety practices relevant to pathogens and make those regulations immediately applicable to aircraft in operation.
- The Mine Safety and Health Administration should promulgate standards requiring mine operators to protect miners from the risk of contracting COVID-19.
- The National Labor Relations Board and the courts should give employees who collectively leave workplaces where they face a significant risk of contracting COVID-19 the benefit of the doubt in exercising their rights under the National Labor Relations Act to refuse dangerous work.
- State legislatures and workers' compensation agencies should create a presumption that at a minimum any “essential” worker who suffers from COVID-19 contracted the infection at the workplace and is therefore presumptively entitled to workers' compensation.
- Congress should enact legislation making paid sick leave a universal requirement for all employees, providing strong whistleblower protections for workers reporting dangerous conditions to authorities, and giving workers a private right of action in federal court to enforce OSHA standards and the general duty clause.
Michael C. Duff