Yes, we still need a workplace COVID-19 rule

COVID-19 has hit workers in the gut. Health care, agricultural, meatpacking plant workers, bus drivers, warehouse workers and retail store clerks have gotten sick and too many have died. The previous administration mostly stood by as the virus wrought this carnage. It offered recommendations on how employers might avert exposing their workers, but it mandated nothing new in the face of the pandemic.

Worker advocates pressed relentlessly for a Department of Labor (DOL)-issued emergency temporary standard (ETS) that would impose clear requirements on all employers in the fight against COVID-19 in the workplace, but they did so to no avail. Faced with thousands of complaints, the Trump DOL did little to address workers’ concerns, as its inspector general recently affirmed.

On the day after his inauguration, President Biden issued a strongly worded executive order. It recognized that “healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the…pandemic,” and that the federal government “must take swift action to reduce the risk that workers may contract COVID-19 in the workplace.” He directed the DOL to issue revised guidance to employers on COVID-19-related workplace safety within two weeks and to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.”

The guidance was issued by the Department’s Occupational Safety and Health Administration (OSHA) on Jan. 29, ahead of schedule. It’s substantively laudable, but it’s noncompulsory. March 15, meanwhile, has come and gone, with no clear indication of the status of an enforceable ETS. 

It may be that the business community is pressuring the DOL, or the White House, or both, to set the anticipated standard aside, because, with the vaccination program rollout, some seem to think it’s no longer necessary. That thinking is wrongheaded.

Yes, vaccinations are proceeding, and that’s a very, very good thing. At this point, over 60 million people in this country have been fully vaccinated, and the rate is increasing. Thus far, the federal government has delivered over 200 million doses to states, territories and federal agencies, which is wonderful.

But the problem is that we’re not nearly out of the woods yet. While every shot in an arm is applause-worthy, only 17 percent of the population is fully protected, which means the vast majority is still susceptible. More than 550,000 people in the U.S. have died from COVID-19, and virus-caused deaths continue at the rate of about 900 per day. 

And, while it’s not welcome news, the highly contagious and more deadly B.1.1.7 “U.K. variant” of the coronavirus now accounts for 26 percent of all cases and is becoming the predominant strain in several regions of the country. Newly reported fatalities are increasing in Oklahoma, the District of Columbia, Missouri, Michigan, Tennessee and Maine. Nationwide, over the past week, cases are up 19 percent over the previous two weeks. New cases are higher in the majority of states, where they’re staying high.  

That is why a federal, enforceable emergency temporary standard for COVID-19-related workplace safety remains absolutely essential, to protect workers from what continues to be the greatest occupational health hazard we’ve seen in a generation. Some state legislatures and governors have stepped up to fill this regulatory void by issuing their own compulsory standards, on subjects like masking and distancing. That’s commendable, but it’s really on the federal government — charged by the Occupational Safety and Health Act to “assure safe and healthful working conditions for working men and women” — to set the floor for all states. And most states haven’t issued any mandatory COVID-19 workplace safety rules at all.

Kudos to those businesses that have stepped up and are following the worthy recommendations in OSHA’s Jan. 29 guidance. They in particular should voice support for an ETS. It will not only protect our workers and the communities they live in, but will also level the playing field for conscientious business owners by requiring all employers — including those more inclined to cut corners on worker safety when faced solely with “recommendations”— to conform with a rule that has teeth.

We still need to use all the tools we have to fight the pandemic. A few days ago, spotlighting the very real COVID-19 challenges we continue to face, the president’s top medical advisor Dr. Anthony Fauci warned us not to “declare victory prematurely.” The White House and the DOL should heed his words and issue the ETS. Lives — in our workplaces and our neighborhoods — are on the line.

Michael Felsen enforced federal worker protection laws, including OSHA, as an attorney with the U.S. Labor Department’s Office of the Solicitor, concluding a 39-year career as New England Regional Solicitor from 2010-2018. He is currently an Access to Justice Fellow with Justice at Work in Boston.