Marcio Jose Sanchez/AP Photo
A construction worker in Los Angeles this week
When there’s a crime wave, do the police merely offer a list of suggestions about following the law, if it’s feasible?
That’s essentially the federal government’s current approach to worker safety. Rather than enforcing the law, issuing citations for violations of required safety standards, and passing pandemic-specific requirements, the Trump administration is offering employers Hints from Heloise: guidance from the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA). Even Labor Secretary Eugene Scalia’s recent letter to AFL-CIO President Richard Trumka, intended to defend his agency’s performance, offers little in terms of real enforcement. The word “guidance” and its variant “guidelines” appear nine times, as well as the observation that “employers are implementing measures to protect workers” (emphasis in original). Absent from the letter: the word “citation.” The word “penalty.”
The results of this toothless approach to enforcement are terribly clear: Workers are getting sick and dying at a rate our country hasn’t seen in over a century. Health care professionals and millions of others deemed essential are being treated as expendable: supermarket cashiers, delivery workers, meat-packers, warehouse workers, bus drivers, and so many more. The lack of protection for workers and the resulting community spread will only grow worse as states open up and more people go back to work. The Trump administration’s dereliction of their duty to the working people of our country is mind-boggling; they must take action now.
As they may not, or until they do—and given the scope of the problem, even when they do—states and localities should step up to protect worker health and safety.
States and cities have long taken measures to protect their residents’ safety, from enacting fire and building codes to testing water quality. This moment, in which workers’ health is inextricably linked to public health, calls for states and cities to make worker safety a top priority. What would this look like?
Since OSHA has not issued a COVID-19 or airborne disease standard, states are free to pass requirements that employers comply with the CDC and OSHA guidance.
To start, 22 states and territories have already assumed responsibility for enforcing workplace safety and health laws for all employers, by previously adopting an OSHA-approved “state plan.” These state agencies should issue standards specific to COVID-19, such as California’s rule covering airborne diseases like the coronavirus. They should also aggressively enforce the law, focusing on workers at high risk of exposure. These 22 jurisdictions, which span the political spectrum, need additional resources to be effective, and full-throated support from state leadership in doing their job.
In other jurisdictions where OSHA is the primary enforcer, states and localities can nonetheless pass laws on workplace safety and health (or act through executive orders), as long as OSHA hasn’t already adopted a rule or “standard” on that specific workplace hazard. And, since OSHA has not issued a COVID-19 or airborne disease standard, states are free to pass requirements that employers comply with the CDC and OSHA guidance, thereby transforming these non-mandatory guidelines into something that’s actually enforceable. In an effort to protect the general public, states can also prohibit retaliation against workers who report dangerous working conditions. And even where there is an OSHA standard, states can pass laws that protect the general public, such as requiring masks in grocery and retail stores, which protect not just workers but customers and the community, too. The National Employment Law Project recently released a policy brief containing model language for provisions to protect the safety and health of workers and the general public.
State attorneys general, as well as county and city attorneys, can file public-nuisance lawsuits against large employers that flout the CDC guidelines. Such lawsuits aim not to win settlements for particular individuals, but rather to protect the health or safety of the general public, which in this case would include avoiding community spread of the coronavirus.
This type of lawsuit has already borne results for workers. Public-interest nonprofits filed a public-nuisance lawsuit against the pork processor Smithfield Foods, which had closed plants in three states because of coronavirus outbreaks. The lawsuit—which sought no money, only safety improvements—reads like The Jungle, both enraging the conscience and curbing the appetite: “If Smithfield slowed the line, workers … could … have time to take effective preventive measures, like wiping spittle from their mouths and covering their mouths when they cough or sneeze.”
While it was ultimately dismissed, the lawsuit attracted nationwide media attention to the problems in meatpacking, and prompted significant improvements for workers at the plant in question: fixed barriers between workers, more opportunities for handwashing, and clarification that workers would not be penalized for taking sick days, among other things. And the reason for the dismissal—that OSHA as a government agency has primary jurisdiction to handle the problem—would be unlikely to apply to states or localities that file similar suits.
Finally, states and localities can suspend or deny licenses or permits to companies with bad records of keeping workers safe. They can refuse to contract with such companies. They can also publicly call out and condemn violators to pressure them to keep their workers and the community safe. And they can educate employers, workers, and customers alike about the OSHA and CDC guidelines.
The above measures will cost real money, at a time when state and local budgets are already grim. But the alternative is worse: unprotected workers, workplace fatalities, community spread, community fatalities. This scenario also isn’t so great for employers, who may be ordered to close if their workplaces become coronavirus hot spots, or for the broader economy.
We need enforcement, not just governmental advice, to protect public health from a deadly pandemic. State and local leaders can’t alone solve this problem, but they must rise to the moment. They should protect workers and, by so doing, protect all of us.
