AFL-CIO, Labor Department spar over workplace safety amid COVID-19

The Labor Department has until May 29 to respond to a court filing

AFL-CIO President Richard Trumka accused the Labor Department of a COVID-19 response that was “delinquent, delayed, disorganized, chaotic and totally inadequate.”
 (Bill Clark/CQ Roll Call)
AFL-CIO President Richard Trumka accused the Labor Department of a COVID-19 response that was “delinquent, delayed, disorganized, chaotic and totally inadequate.” (Bill Clark/CQ Roll Call)
Posted May 21, 2020 at 6:00am

A tense debate over worker protection under the threat of coronavirus has been taking place between the administration and labor despite the shutdown of many institutions.

The Labor Department released written testimony from the head of the Occupational Safety and Health Administration on Wednesday even though the House hearing it would have been delivered at was postponed. And it came one day after the department issued a new enforcement policy on COVID-19 safety in the workplace.

The undelivered testimony by Loren Sweatt, the principal deputy assistant secretary for occupational safety and health, said the department's informal guidance setting out best practices for nursing homes, ride share services, meat packers and other sectors was sufficient in combination with the department's existing enforcement authority. The testimony was intended for the House Education and Labor Committee.

The department's flurry of activity followed another attack on the administration’s worker safety stance by the AFL-CIO, which filed a lawsuit on Monday in the U.S. Court of Appeals for the District of Columbia asking for a court order forcing OSHA to issue a new emergency temporary standard for infectious diseases.  

The lawsuit follows a tough exchange between AFL-CIO President Richard Trumka and Labor Secretary Eugene Scalia, in which Trumka in an April 28 letter accused the department of a  COVID-19 response that was “delinquent, delayed, disorganized, chaotic and totally inadequate.”

The same theme resounded throughout the AFL-CIO's request to the appellate court, a petition of mandamus asking the court to order OSHA to issue an emergency temporary standard (ETS) to control occupational exposure to an infectious disease. The AFL-CIO also petitioned OSHA on March 6 to issue such a standard, as did a nurse’s union. 

But the Labor Department never responded.

“We submit that in the face of a global health emergency causing more deaths in less time than any other workplace crisis OSHA has faced in its fifty-year existence, OSHA’s refusal to issue an ETS constitutes an abuse of agency discretion so blatant and of ‘such magnitude’ as to amount to a clear ‘abdication of statutory responsibility,’” the AFL-CIO argued in its filing.

A three-judge panel ordered the department to file a response by May 29.

Sweatt's testimony urged lawmakers to recognize OSHA's existing standards.

“While extensive guidance is important as the rapidly changing dynamic of this pandemic continues, it is important to recognize OSHA also has existing standards that serve as the basis for its COVID-19 enforcement,” the testimony said. “Those standards include rules regarding respiratory protection, personal protective equipment (PPE), eye and face protection, sanitation, and hazard communication.”

Rep. Robert C. Scott, D-Va., the committee chairman, has introduced legislation seeking to force the Labor Department to issue such a standard, and it was included in the coronavirus relief legislation passed by the House on May 15.

Despite Sweatt’s affirmation that guidance is sufficient, the department on Tuesday issued two revised enforcement policies. The first will increase the number of in-person inspections at all types of workplaces.

“OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done,” the department press release said.

Second, the department changed previous enforcement policy and reaffirmed that coronavirus is a “recordable illness” subject to mandatory employer reporting when the case is confirmed as COVID-19, when it is work-related, as defined in law, and when it meets other criteria, such as requiring first-aid or sick days for the employee.

“Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace,” the department statement said. “OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.”

In guidance issued April 10, however, the department had said it would not enforce the reporting requirement for employers not in health care, emergency response or law enforcement, except where there was “objective evidence” that the infection was work-related and that evidence was “reasonably available” to the employer.