Today is the first anniversary of President Biden’s Executive Order (EO) directing OSHA to issue an Emergency Temporary Standard to protect American workers from contracting COVID-19 on the job. Below is a short review of the progress made over the past year — or lack thereof. Spoiler alert: No champagne corks are popping — at least by workers or their advocates.
Some of my observations below repeat what I’ve written over the past tumultuous months.
On January 21, 2021, the second day of the Biden Administration, President Biden issued his “Executive Order on Protecting Worker Health and Safety”
Ensuring the health and safety of workers is a national priority and a moral imperative. Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19.
The EO called for “swift action” to protect workers, and directed OSHA to issue guidance within two weeks, and then
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.
(While the EO didn’t explicitly direct OSHA to issue and ETS, it was generally understood that for legal reasons, the White House could only require OSHA to “consider,” although the message was clear: ETS by March 15.)
Worker and public health advocates were overjoyed. The country had just been through a grueling year of the worst pandemic in world history. Hundreds of thousands of Americans had died from workplace exposure to the virus, and while much of the country was shut down for weeks or months, “essential workers” in hospitals, meatpacking plants, warehouses and grocery stores saw massive outbreaks of disease and death.
Trump Administration’s Failure to Protect Workers
Biden’s fast action followed the year-long abject failure of the Trump administration to protect workers from COVID-19.
And it wasn’t because OSHA hadn’t been warned. The Trump administration was notified early on that the emerging corona virus could present a major threat to workers, particularly health care workers. On January 30, 2020 — before here was a single death in the United States — House Education and Labor Chair Robert “Bobby” Scott sent a letter to OSHA asking them to restart work on their infectious disease standard (which had been relegated by the Trump administration to the “long term” regulatory agenda) and to prepare to issue an ETS covering health care workers in case of a widespread epidemic. By the beginning of March, it was obvious that COVID-19 presented a major hazard to health care workers. Having received no response to the January 30 letter, Rep. Scott again wrote OSHA describing how conditions in health care workplaces had deteriorated to the point that an immediate ETS protecting health care workers was necessary.
Scott also introduced two bills that would have required OSHA to issue an immediate ETS, which were also included in several House-passed COVID relief bills that never passed the Senate.
Meanwhile, the CDC took a major step backwards in the battle to protect health care workers when it weakened its health care worker respiratory protection guidance. Prior to early March, CDC guidance had recommended that health care workers use N-95 respirators (or better). But facing a shortage of N-95s, CDC reversed that guidance, allowing health care workers to wear surgical masks except during high-risk procedures, despite strong evidence that the virus was likely airborne and able to evade the inadequate protection provided by surgical masks.
The Trump administration’s response to the pandemic in the workplace was far too little, far too late. Although OSHA issued voluntary guidance, the Trump administration refused to allow OSHA to consider an ETS. In fact, Loren Sweatt, the acting OSHA assistant Secretary, even refused at a Congressional hearing to admit that COVID presented a “grave danger” to workers (despite a clear statement by NIOSH Director John Howard at that same hearing that COVID certainly was a grave danger to workers.)
And it was far into the pandemic that OSHA took any enforcement action or used its General Duty Clause to enforce safe working conditions. It wasn’t until May 2021 that the first COVID-19 related citation was issued — for recordkeeping violations. OSHA finally took action against Smithfield Packaged Meats Corp. in Sioux Falls, S.D in September 2020 after the plant had seen 1,294 infections and four deaths. Even then, OSHA issued only one “serious” violation and a $13,494 fine. Hardly a pin-prick to the giant corporation and a message to employers that OSHA was not taking preventable worker exposure seriously.
In fact, despite the clear danger faced by tightly packed-together meatpacking workers as numerous plants were forced by COVID outbreaks to shut down, the Trump administration issued an Executive Order in April 2020 strongly pressuring meatpacking plants to stay open and watered down a CDC investigation of working conditions in a meatpacking plant as well as OSHA meatpacking guidelines.
Vaccinate Our Way Out?
But coming out of the Trump administration worker protection disaster, the relief felt by workers and advocates was unfortunately short-lived. The March 15 deadline came and went. As did April and May. Despite the strong directive to OSHA, the White House had started having second thoughts about an ETS covering all at-risk workers and abruptly changed course. As spring turned to summer, It became increasingly clear that the White House had chosen to focus on vaccinations as the main way out of the pandemic, despite efforts by labor unions and worker protection experts who emphasized that other, more layered protections — ventilation, masking, distancing, etc. – were also important to fully protect workers. But to the White House, just simply waiting for everyone to get vaccinated apparently appeared much simpler, faster, cleaner and cheaper than all of those other masking, distancing and ventilation requirements.
In June, OSHA finally issued an Emergency Temporary Standard, but it covered only healthcare workers, leaving everyone else to the whims of OSHA’s General Duty Clause. And despite increasing evidence over the past year — including the devastating Delta and Omicron variants — that vaccinations are important, but not sufficient measure to protect workers, the administration has continued to subordinate other protective measures to the sole goal of getting workers vaccinated.
Soon after issuance of the healthcare worker ETS, the rise of Delta and increasing numbers of breakthrough infections, combined with growing political opposition to vaccination, made it clear that while vaccinations — and then boosters — were vitally important measures, they were not enough to protect workers. The same layered requirements that were included in the healthcare worker ETS — respirators/masks, improved ventilation, distancing, medical surveillance, paid quarantines, etc, — are essential to protect all workers.
But instead of broadening protections for all workers, the Administration doubled down on vaccinations, issuing OSHA’s vaccinate-or-test Emergency Temporary Standard in early November. That standard, again, fit well into the dream that we could vaccinate our way out of the pandemic, but it was not well thought out — at least by the White House that was apparently calling the shots — more for political cover than worker protection reasons. For the first time in OSHA’s history, the standard exempted small employers with fewer than 100 workers, despite the fact that employees of small employers face no less hazard than employees of large employers. Also unprecedented was OSHA’s failure to require employers to pay for workers’ tests or masks.
But wait, it gets worse. Shortly before the Supreme Court argument on the vax-or-test ETS, OSHA announced that it was withdrawing the healthcare worker ETS six months and one week after it was issued, because a permanent standard could not be issued in the 6 months contemplated by the Occupational Safety and Health Act. The withdrawal was apparently an effort to eliminate possible Supreme Court criticism that OSHA was taking advantage of its ETS authority to bypass full rulemaking. But this was over-reach: the language of the OSHAct is clear that an ETS stays in effect until a permanent standard is issued, even if OSHA misses the impossible 6 month deadline mentioned in the OSHAct.
Where Are We Now?
As the smoke clears, where are workers now, one year after Biden’s Executive Order?
Unfortunately, they’re right back where they were one year ago.
This country’s workers now have no legal protection against COVID-19 aside from the legally burdensome General Duty Clause and various OSHA standards covering respiratory protection and housekeeping. The comprehensive ETS covering all workers never saw the light of day. The health care worker ETS has come and gone. The vax or test ETS has come and gone barely after starting to go into effect.
The only workers who are now required by law to be vaccinated are our overworked, underpaid, burned out health care workers and even vaccinations aren’t stopping them from getting sick. Even though the vaccine is still proving to be amazingly effective in preventing severe disease and death, it’s not preventing a huge percentage of health care workers from getting infected and sick, further straining their health, their sanity as well as the entire health care system. And just to put a cherry on top, in order to save hospitals (and other businesses) from sinking beneath the Omicron wave, CDC is now recommending shorter isolation times for sick workers, likely allowing sick and infectious workers back into health care facilities and other workplaces.
What Is To Be Done?
The good news is that while blocking the vax-or-test ETS, the Court did not take the opportunity to declare the entire post New Deal system of government protections to be unconstitutional (although three justices would have liked to do that), and left open the possibility that OSHA could issue a more risk-based standard targeted at the most at-risk workers. Instead of declaring the vax-or-test (or the entire OSHAct) to be unconstitutional, the majority decision basically said that OSHA was guilty of over-reach beyond what the 50 year-old authorized. (You can read my analysis here, and the analyses of others here.)
They left open the possibility that a more risk-based COVID-19 standard targeted at workers with an elevated risk would be acceptable by the Courts. And happily, OSHA wrote a very similar standard last Spring — one that was rejected by the White House. As former OSHA Assistant Secretary David Michaels and I wrote recently in the New York Times, the agency
should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers. Second, OSHA should rescind its withdrawal of the standard for health care workers or immediately issue a new one. Keeping health care workers safe must, of course, remain a top priority.
There are also a number of other actions that OSHA can take. Without going through the entire lengthy regulatory process, OSHA can take action to require reporting of workplace outbreaks. The agency can quickly move to fix its severe injury reporting rule which now only requires COVID-19 hospitalizations to be reported if they occur within 24 hours of exposure, and deaths within one month of exposure. The way that regulation is currently interpreted, no hospitalizations and very few COVID-related deaths will be reported to OSHA.
The last year could have gone better.
When it comes to worker protection from COVID-19, this administration has erred badly: wandering here, meandering there, chasing rainbows, taking one step forward, and then two back.
What are the lessons to be learned? Here are a few suggestions.
- Let OSHA Be OSHA: It seems clear that the leadership of OSHA is no longer steering the workplace safety and health ship when it comes to COVID-19. The agency was excited and raring to to after the January 2021 Executive Order was issued. But after months of hard work, nights and weekends, only the health care worker portion was allowed to see the light of day. OSHA should have been allowed to issue a more traditional comprehensive standard. A more traditional standard requiring layers of protection: distancing, masking, ventilation, outbreak reporting, paid sick leave, etc. would have provided far more effective and politically palatable protection for workers than the highly risky, and ultimately unsuccessful exclusive focus on vaccines. The White House needs to treat OSHA as the experts in workplace safety and health that Congress intended them to be. And that includes allowing OSHA to overrule CDC in the area of worker protection — which would have avoided CDC’s unfortunate decision to allow healthcare workers to wear surgical masks instead of N95s.
- Don’t put more political weight on OSHA than it can bear: Ultimately, while it is clear that all workers (and everyone else) should be fully vaccinated, it turned out to have been a poorly thought-out decision to put so much political weight on a tiny, politically vulnerable agency with a weak 50-year old law, predictably ending up at the mercy of an obviously hostile Supreme Court that could have used this debate as an excuse to dismantle the entire post-New Deal regulatory state and declare most of the existing government unconstitutional.A much more politically palatable — and more protective measure –would have been to issue the standard that Biden had originally contemplated one year ago in his Executive Order. It would have provided important protections for workers and even with masking requirements, likely would have had a much better chance to surviving legal challenges than diving head-first into the politically fevered vaccination debate that would ultimately end up in a politically driven Supreme Court. Remember that the health care ETS was not even challenged in court (except by the AFL-CIO which only sued to broaden it.)
- Pay attention to the reality of today’s Courts: Yes, Mitch McConnell cheated us out of two Supreme Court seats. Yes, the Supreme Court and many appellate courts are guided more by politics than by law. But that’s the reality we have to deal with in the foreseeable future. As Simon Lazurus wrote in the New Republic after the recent court decision:
In the longer term, liberals in the administration and Congress need to recognize the judiciary as a coequal branch of government, not only in principle but as a political force to be reckoned with—albeit one with unique characteristics. This means that when officials at either end of Pennsylvania Avenue develop policy proposals or political strategies, they cannot treat the courts, the Supreme Court in particular, as an afterthought by assuming the Justice Department will ride to the rescue when they get sued.
That doesn’t mean OSHA has to go into mothballs or pull any punches on future standards, only that it will be better off focusing on more accepted traditional approaches to rulemaking, with a close (but not paralyzing) eye on how its standards can survive in today’s courts.