John Locher/AP Photo
Health care workers protest unsafe working conditions and demand that OSHA intervene, April 30, 2020, outside MountainView Hospital in Las Vegas.
It should tell you something about who U.S. public policy honors and respects that the Protecting America’s Workers Act (PAWA), a bill that would simply expand the workplaces covered by the Occupational Safety and Health Administration (OSHA), oblige employers to handle violations while a case is being litigated (instead of just leaving workers in harm’s way), and improve whistleblower protections for workers, has been continually introduced in Congress for 20 years, without passage. Advancement on this Congress’s version of PAWA would require eliminating the filibuster from an evenly divided Senate, and even then, success would not be automatic.
In the midst of a historic pandemic that turned workplaces into hives of disease and threatened workers making barely livable wages with sickness or death, it’s particularly maddening that workplace safety has remained such a low priority in Washington. In a nation with over 130 million workers employed at more than eight million worksites and ever-evolving job environments, OSHA desperately needs to be retooled. But how can that be accomplished amid an indifferent Congress, and an agency with too little to offer workers?
For 50 years, OSHA has fallen short of its mission to protect workers, hamstrung by inadequate funding and bad agency design. Staffing levels are at a 20-year low, down about 22 percent from the peak. OSHA’s fines, which by statute max out at as little as $13,653 for serious violations, are much too weak to have a deterrent effect, except for the smallest employers. Even these penalties are often left unpaid for years while being appealed, or are reduced or dismissed entirely.
One problem is that the onus of safe working conditions has been constantly placed upon the worker. Employers often do the bare minimum to squeak by any potential legal issues. Workers consequently have to assert their rights to hold employers accountable, rather than employers being held accountable to provide baseline conditions for workers. This dynamic is problematic on its face, but more so given how many workers are unable to assert any substantive rights in the first place.
Another issue is that labor regulations are often relegated to state labor departments. Twenty-eight states and territories have OSHA-approved state plans; 22 cover both private and state and local workers, and six cover state and local workers only. “OSHA has very little leverage over state plans because first, OSHA doesn’t have a large enough budget to take over the plans,” says Jordan Barab, former House labor policy adviser and deputy assistant secretary of OSHA. “And when the plan is not working hard enough to protect workers, there’s almost nothing OSHA can do.” Sometimes state labor commissioners who oversee these agencies are elected, and their scrutiny can be bought out for campaign money.
While some state OSHA plans do put forth standards that go beyond federal OSHA, that doesn’t counter the basic problem that federal OSHA standards themselves (including the fact that not all public employees are automatically covered) are lackluster. Moreover, OSHA was critically late when it came to enacting an Emergency Temporary Standard for COVID, and the finished product has not even been completed, over a year after the initial lockdowns. Nonemergency situations are even worse. “It takes eight to ten years to get out a standard, and that’s ‘quick’ these days,” says Peg Seminario, former director of occupational safety and health for the AFL-CIO. The result is usually hundreds of pages of analysis, coupled with around ten pages of actual regulations.
Even if OSHA’s staff and funding levels, standards, and enforcement were superior, the basic structure of how OSHA works would still be a problem. For one, people who work without adequate union protections are left to advocate for themselves. And union membership is on a 40-year decline, stalling at around just 10 percent. “The reason we have an OSHA law is because of unions. And until we have a stronger organized labor force, a stronger workers’ movement politically, getting those changes in place is going to be really hard,” says Seminario. “It comes down to the ability of workers to actually organize and exercise their power in the workplace and political systems.”
For immigrant workers, their basic existence in this country can depend on ignoring their labor rights and putting up with mistreatment. Immigration status can embolden employers to get away with worker mistreatment, by threatening workers’ jobs, or even their residency. “If [employers] wanted to control workers, they could just call ICE [Immigration and Customs Enforcement],” says Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health. She described how employers historically have intentionally brought in “the weakest link,” who would be the least vocal or capable of organizing, like immigrants, African Americans, and people who couldn’t speak English.
OSHA was critically late when it came to enacting an Emergency Temporary Standard for COVID, and the finished product has not even been completed.
OSHA has changed little in its 50-year existence, despite substantial changes to America. The nation’s workforce is massively diversifying, and the gig economy and contract work are on the rise. OSHA protections are only granted to employees, not independent contractors. So up to 59 million people are working in jobs without protections.
Incidentally, the same actions needed to pass the Protecting the Right to Organize (PRO) Act—eliminating the filibuster or mass political mobilization to force the Senate across the 60-vote threshold—would lead to the passage of PAWA. Given how the PRO Act would serve to buttress workers’ ability to advocate for themselves and each other, it’s notable how much attention it has garnered (justifiably), while PAWA, a bill that would expand protections that workers continually try to assert rights for, continues to be left behind. “Worker safety always has ended up taking a back seat to other priorities,” says Seminario. “A Republican president is never going to sign PAWA. So it’s got to be a Democratic Congress and president. We haven’t had that very often, and we have it now. But there’s always other priorities.”
The COVID-19 crisis ostensibly forced attention on the welfare of so-called “essential” workers. But Republican states wasted little time seeking to push people back to work, with seemingly no acknowledgment of poor working conditions even before the pandemic. David Michaels, a former OSHA secretary during both of President Obama’s terms who is now a professor at George Washington University’s Milken Institute School of Public Health, feels frustration at the lack of sustained attention.
“Before this pandemic, we always found it was extremely difficult to get any press coverage of the challenges facing workers, or what happens when workers are hurt or killed on the job. So there isn’t public oversight of OSHA,” Michaels says. “Just as these workers were invisible and underpaid, OSHA was primarily invisible and under-resourced. And I hope that changes when this pandemic is in the rearview mirror.”
President Biden has come out in favor of workers’ right to organize and unionize. More importantly, he has nominated California’s current OSHA chief, Doug Parker, to lead federal OSHA. Parker, warmly welcomed by advocates, comes from a state that implemented a rigorous Emergency Temporary Standard for COVID-19 and had issued 203 citations to employers as of April 5, versus 408 citations doled out by the entire federal agency as of April 12.
But OSHA isn’t just deterred by a lack of will, but a series of design flaws that will take either substantial agency creativity or legislative action to remedy. The fact that an accelerated emergency standard was needed to deal with COVID-19 in the workplace recognizes that OSHA’s ongoing tools, resources, and standards are woefully inadequate. The Protecting America’s Workers Act could be revolutionary; the same factors that would lead to its success would run parallel to conditions that would bode well for workers’ rights broadly in America. Its success would demonstrate that government holds the convictions required to successfully take care of workers in this country.
But talk is cheap. Will workers finally get their day? Or will there still just be “other priorities”?
