Virginia and OSHA Fail Workers

Editors’ Note: Adapted from The New Republic (Timothy Noah), May 29, 2020, and the Daily News-Record (Ian Munro), June 29, 2020.

While “essential workers” labor under treacherous conditions in face of the coronavirus pandemic, the terms of their employment are in technical violation of federal law. For half a century, it’s been illegal for any U.S. business to expose its employees to “recognized hazards that are causing or are likely to cause death or serious physical harm.”

 

BREAKING NEWS, July 15, 2020: 

Virginia adopts first coronavirus safety rules for workplaces in the country after labor groups decry White House inaction

Companies could face steep fines if they do not follow new state rules meant to prevent spread of the virus

But a law is only as good as the government’s willingness to enforce it, and the agency that supposedly enforces that one, the Occupational Safety and Health Administration, has been silent. OSHA has yet to issue a single citation related to COVID-19, even though it’s been over 3 months since the president called the coronavirus a national emergency. There’s no good answer—beyond, that is, the priorities of a Republican administration that’s resistant to the idea that workers possess any rights at all.  

For half a century, it’s been illegal for any U.S. business to expose its employees to “recognized hazards that are causing or are likely to cause death or serious physical harm.” But a law is only as good as the government’s willingness to enforce it, and the agency that supposedly enforces that one, the Occupational Safety and Health Administration, doesn’t want to.

Virginia fares no better. The Virginia Safety and Health Codes Board met recently for the second time to develop an Emergency Temporary Standard to further protect Virginia workers from possibly contracting COVID-19. But it could take the 14-person board another meeting or two before it can approve the document, according to the policy, planning and public information director for the Virginia Department of Labor and Industry.  

The Virginia Safety and Health Codes Board met recently for the second time to discuss an Emergency Temporary Standard to further protect Virginia workers from possibly contracting COVID-19. But it could take the 14-person board another meeting or two before it can approve the document.

When Gov. Ralph Northam issued an executive order requiring the wearing of face masks, the order also included a provision requiring the commissioner of the department to issue emergency protocols to ensure employers are taking adequate precautions to keep their workers safe.

On June 22, the Virginia Poultry Federation, along with the Harrisonburg-Rockingham Chamber of Commerce and over 25 other business groups, submitted a joint letter voicing their own concerns about the emergency standards to the Virginia Department of Labor and Industry. In the letter, the groups point out numerous worries about how “one size fits all” COVID-19 regulations in the temporary standards may affect employers and the often vital products they provide to the public. Labor advocates say more needs to be done to ensure workplace safety.

Members of the Safety and Health Codes Board include labor and employer representatives from different industries, including the agricultural, manufacturing, and construction sectors, as well as a pair of Virginia state government officials. “Right now, we’re scrambling to figure out dates to try and schedule the next meeting,” said the public information director for the Virginia Department of Labor and Industry.

[Secretary Scalia] maintains that OSHA has all the tools it needs to protect workers. But the idea that OSHA’s existing apparatus is all that’s needed to punish employers who willfully expose their workers to COVID-19 is hard to square with OSHA’s record of never having done so [emphasis added]—or rather, not until this past week.

Back to the federal level. OSHA comes under the Department of Labor, headed by Secretary Eugene Scalia (yes, his son, with a demonstrated record of anti-worker history) who maintains OSHA has all the tools it needs to protect workers. But the idea that OSHA’s existing apparatus is all that’s needed to compel employers who willfully expose their workers to COVID-19 is hard to square with OSHA’s record of never having done so [emphasis added]or rather, not until this past week. The late-breaking citation was against a Georgia retirement home where 27 staff members tested positive for COVID-19, and 13 residents died from the virus. The citation was for late reporting of staff hospitalizations. The fine was $3,903.60.

The language creating OSHA in 1970 states that “each employer shall furnish to each of his employees a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is a cumbersome litigation tool that OSHA has seldom used to punish scofflaws in the past. (In 2018, it was used only 1.5% of the time in over 60,000 citations.) 

OSHA has issued  industry-specific “guidance” related to COVID-19. But guidance is bureaucratese for “advice,” not “rules.” And advice can be ignored. Under the law, OSHA could issue an emergency temporary standard if “employees are exposed to grave danger.” A lawsuit recently brought by the AFL-CIO argues that, under present circumstances, OSHA must issue such a standard—that is, set firm rules that industry must obey. The lawsuit is still pending.

Meanwhile, thousands of workers–if not more–in the Commonwealth and around the country risk their lives on a daily basis because laws meant to protect them are not working.

 

 

 

 

 



Categories: coronavirus, Issues, labor and unions, Local, National, pandemic, politics, State

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