The Biden administration should use OSHA to help curb the pandemic

President-elect Biden has released the outline of his plan for curbing the spread of COVID-19. The outline makes no specific mention of tackling workplace infections, although it does mention providing funding to small businesses to obtain PPE for workers. At a time when it is evident that workplaces are a source of infection, especially for people of color, it is critical that President-elect Biden’s COVID-19 task force include a focus on preventing workplace infections. 

Under the Trump administration, the federal agency tasked with protecting workers, the Occupational Safety and Health Administration (OSHA), failed to act to protect workers from the risks of infection with COVID-19, creating workplace outbreaks. OSHA refused to produce legally binding rules, known as emergency temporary standards, that would require employers to take even the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. While OSHA did produce non-binding guidance for employers, that guidance has been unclear and is fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential outbreaks in workplaces in their early stages. In fact, OSHA’s guidance has limited the number of infections that employers have to report. OSHA also failed to use its enforcement authority in a way that would encourage employers to use risk-mitigation strategies in the workplace. Rather than undertaking increased inspections to send a signal that employers need to protect workers from COVID-19, OSHA has conducted fewer inspections since the onset of the pandemic than it has in previous years. 

President-elect Biden needs to quickly appoint a new individual to replace Loren Sweatt as the principal deputy assistant secretary of labor to run OSHA. This person needs to take decisive action within OSHA to slow or stop the spread of COVID-19 in the workplace. OSHA should promulgate an emergency temporary standard to require masks provided by the employer in all workplaces. 

This emergency temporary standard should also require employers to report all worker infections in order to prevent workplace outbreaks. In addition, existing guidance documents must be revised to clarify other steps that employers should take to reduce the risks of infection in the workplace, such as updating ventilation systems and actively encouraging employees who are infected or quarantined not to come to work. Congress needs to act to bolster this guidance by passing legislation that provides all Americans with paid sick leave in the event they cannot attend work due to infection or quarantine.   

Creating legally binding safety and health rules, and improving guidance documents, are only two of the steps needed to significantly decrease workplace infections. Effective enforcement must also be a part of the plan. For many years, OSHA has had far too few inspectors to effectively enforce workplace safety rules. Fixing this problem requires Congress to prioritize funding for hiring more inspectors. 

Finally, OSHA must create a new template for its enforcement efforts in a pandemic. So far, OSHA’s lack of enforcement has helped allow workplace infections to spread, and its relatively few citations and low fines have cemented the impression that employers can ignore OSHA. For example, despite well-known outbreaks in meat processing plants that have led to hundreds of deaths and thousands of infections, OSHA has cited and fined only two plants. The fines were so small that they are unlikely to change the conduct of companies. OSHA has also failed to investigate the vast majority of worker complaints of unsafe conditions and of retaliation for complaining of these conditions.

In this pandemic, OSHA must identify the types of workplaces that present the highest risk of outbreaks, such as retail stores and factories, where workers are in proximity to customers or other workers. OSHA should prioritize proactive investigations of those workplaces to prevent outbreaks. It must also undertake rapid investigations of workplaces where employees have complained that their employers are failing to act to protect them from workplace exposure. These investigations must be rigorous, not merely OSHA issuing letters in response to workers’ complaints. Unsafe workplaces must be cited and fined a significant amount to send a strong message to all employers and thereby change behavior to reduce workplace infections. 

At this critical juncture, in which infections are spiking, President-elect Biden needs to ensure that OSHA takes decisive action to reduce infection rates in the workplace. 

Nancy M. Modesitt is a professor of law at the University of Baltimore School of Law, where she teaches employment law and torts. She is a co-author of “Whistleblowing: The Law of Retaliatory Discharge.”