Over two million Americans have tested positive for coronavirus and more than 120,000 have died from COVID-19, and these numbers are growing daily. The virus spreads rapidly among people who are in large groups, indoors and in close contact for extended periods of time. These criteria match up with many of the transmission hotspots we’ve seen so far – nursing homes, prisons, hospitals and meatpacking plants. Frontline and essential workers, including health care workers, construction workers and others who can’t work from home are at increased risk, especially when physical distancing can’t be maintained.
“The LHSFNA has developed comprehensive materials to assist LIUNA signatory contractors in responding to the COVID-19 pandemic,” says LHSFNA Management Co-Chairman Noel C. Borck. “These safety and health programs, policies and procedures are specific to the construction industry and designed to ensure the highest standard of safety and health for workers and their families while these essential projects continue.”
OSHA has issued numerous guidance documents explaining steps employers should take to protect workers from COVID-19. However, many public health and labor groups, including the AFL-CIO, have urged OSHA to go beyond guidance and issue an emergency temporary standard (ETS). When OSHA denied this request, the AFL-CIO sued to compel the agency to issue a standard, and voiced support for a bill in Congress that would require OSHA to issue a standard. So far, the courts have upheld OSHA’s decision not to issue an ETS.
The debate over how to protect workers from COVID-19 centers around two competing approaches: standards and guidance. OSHA’s guidance gives employers non-enforceable recommendations on how to work safely. OSHA standards are rules that require employers to protect workers from a hazard and are enforced by the threat of citations and fines. Promulgating a new OSHA standard requires OSHA to determine its cost and effectiveness and consult with many stakeholders. This process often takes many years to complete. OSHA guidance documents, on the other hand, can be developed quickly and modified as new information arises. The downside is that OSHA does not enforce their guidance documents. If employers decide not to follow it, there is little OSHA can do. While OSHA’s “general duty clause” allows the agency to issue citations when employers don’t provide a workplace “free of recognized hazards,” we’ve previously covered how the requirement is vague and difficult to enforce. OSHA has received over 5,000 complaints about COVID-19 exposures in the workplace, but very few citations have been issued.
Unlike an OSHA standard, an ETS would go into effect immediately. OSHA would then have to develop a more permanent standard within six months. Industry groups have strongly opposed an emergency standard. The Construction Industry Safety Coalition, a group of construction associations that includes the Associated Builders and Contractors, said the following:
This bill … puts the cart before the horse, mandating the issuance of a new standard before OSHA has had the opportunity collect and analyze data on the prevalence of workplace exposure to and contraction of COVID-19.
… We believe the agency’s current approach of issuing and updating industry-specific guidance takes into consideration the fluid nature of the situation and offers a more nimble approach to ensure the regulated community is provided with the most up to date information.
Based on the number of COVID-19 cases originating in certain workplace hotspots and the number of worker complaints filed with OSHA, it seems clear that OSHA’s industry-specific guidance has not been protecting workers sufficiently, or that certain employers have not been following CDC or OSHA guidance. An ETS would subject employers to fines of $10,000-$15,000 for non-compliance and $70,000 for willful violations. As we’ve seen with the silica rule, OSHA standards can strike a balance between telling employers how to comply and still allow flexibility based on the task or exposure risk.
There is already plenty of data available on the substantial health risks to workers from COVID-19 for OSHA to issue a standard. Because an ETS would require OSHA to revisit the standard within six months while developing a proposal for a final standard, any emergency rule would be based on the science to date and could be revised to reflect the latest science before becoming final.
The bottom line is this: should OSHA require employers to protect workers from COVID-19 or continue to issue recommendations that are up to the discretion of the employer? As the OSH Act states, an emergency standard is necessary when workers are exposed to a “grave danger.” At recent Congressional hearings, Dr. John Howard, the director of NIOSH, was asked that exact question: “Are American workers exposed to a grave danger from COVID-19?” His answer was “Yes.”