The pandemic likely would have overwhelmed OSHA no matter what
osha has a budget less than a tenth the size of the Environmental Protection Agency’s. Limited resources, meek penalties, and fierce opposition from business interests have long inhibited osha’s ability to address the unsafe conditions that lead to the deaths of some five thousand workers on the job annually, with injuries sustained by nearly three million more, according to an article in The New Yorker.
osha can still let companies know that willfully violating the law has serious consequences. One of these methods is negative publicity. According to Matthew Johnson, a Duke economist and the author of “Regulation by Shaming,” a study of the policy’s deterrent effects, such messages targeted at local media and trade publications led to a thirty-per-cent reduction in violations at nearby facilities in the same industry.
The Trump Administration summarily ended the policy. President Obama’s OSHA chief, David Michaels, asks, “When have you heard President Trump mention osha? Or Vice-President Pence? Or even Labor Secretary Scalia? With thousands of workers sick and hundreds dying over an infectious disease that we know how to prevent, Scalia should be banging the table saying, ‘You have to make sure workers are safe!’ He should be next to Anthony Fauci on television every night.” Despite reports of workers being exposed to unsafe conditions everywhere from Amazon warehouses to greenhouse farms, Michaels said, Scalia has been “invisible.”
A Labor Department spokesperson said Scalia has been “focused since the beginning of the pandemic on ensuring the safety of workplaces,” in part by offering extensive guidance for both employers and workers. Yet osha has explicitly told employers that none of its covid-19 recommendations impose new legal obligations.
Scalia has bristled at criticism of his handling of the pandemic, But David Michaels said that the front-line officials he’d heard from felt handcuffed by the Labor Department’s current leadership. “They’re there to protect workers—and they’re not being sent to do anything,” he said. A former osha official in Massachusetts informed me that colleagues there had been “pulled off a covid-19 fatality inspection at a Walmart where two employees died.” Their superiors ordered them to “do a roofing inspection” instead.
osha has also reduced its personnel. According to a report published in April by the National Employment Law Project, which drew on data obtained through the Freedom of Information Act, osha hasn’t had so few inspectors in 45 years. And forty-two per cent of the agency’s leadership positions, including that of Assistant Secretary of Labor for Occupational Safety and Health—the job that Michaels held—are vacant. Although the Labor Department has lately made some new hires at osha and in other divisions, years of attrition have taken a toll, according to Irv Miljoner, who until his recent retirement directed a district office in the department’s Wage and Hour Division. “Many field offices have only about half of the investigative staff they had five years ago,” he said. “The field is being strangled.”
Some legal observers have wondered why Scalia left a highly remunerative job to serve an erratic, mendacious President who has shown little loyalty to his advisers. One person close to the situation said of Scalia, “It was not an easy decision on his part. He thought about it long and hard. And I think at the end of the day he thought, I can do some good things.”
Ann Rosenthal, a career Labor Department lawyer, recently retired. She is astonished that osha has issued so few citations during the pandemic, and mystified by the weak language in the guidance sent to employers. “There’s a lot of ‘Consider doing this,’ ‘If it’s possible, do that,’ ” she said. “Under the law, it’s an employer’s obligation to keep workers safe.” Rosenthal added bitterly, “I’m really appalled.”
On October 5th, the Harvard Center for Population and Development Studies released a working paper that examined why the per-capita mortality rate from covid-19 is five times higher in America than it is in Germany. The paper found a correlation between complaints to osha in various regions of the country and local spikes in mortality roughly 17 days later. The findings indicated that national safety standards and stronger enforcement by the federal government could have mitigated the virus’s spread “in the workplace and, in turn, the community at large.” (The Labor Department spokesperson said that the study didn’t “establish that an increase in fatalities was somehow attributable to how osha responded to complaints.”)
Among the communities most imperiled are rural counties with meatpacking plants, where more than forty thousand workers have contracted covid-19 and at least two hundred have died, many of them Latino immigrants. In April, Trump signed an executive order categorizing meat and poultry as “critical” to “national defense,” thus ensuring that meat-processing facilities would stay open. osha issued “interim guidance” but no mandatory safety measures to protect workers. Inspections of meatpacking plants have increased in the months since, but Alfonso Figueroa, an official with the United Food and Commercial Workers, has not been impressed by their rigor.
On May 13th, Figueroa learned that an osha inspector was coming to a beef plant in Dodge City, Kansas, where three workers had died. “I got word of them coming maybe 30 minutes beforehand,” Figueroa said. “So, we do our introductions, and we walk through the areas where the deceased workers used to work—the kill floor, the ground-beef area, the fabrication floor.”
The walk-through was “really fast,” Figueroa said. He explained to the inspector that a lot of workers were scared and that, even though partitions had been placed in some areas, employees still interacted closely in hallways and locker rooms. “I said, ‘There’s much more that needs to be done.’ ” But the osha inspector seemed to be in a rush to leave. “I’ve been involved in other osha inspections that have been very thorough,” Figueroa said. “This wasn’t—at all.”
In September, osha imposed minor penalties on two slaughterhouses. A Smithfield plant in South Dakota, where four workers had died and some twelve hundred had been infected, received a $13,494 fine. A J.B.S. plant in Colorado, where eight workers had died and several hundred had tested positive, was fined $15,615. Deborah Berkowitz, who was osha’s chief of staff under Obama, called the penalties “barely a slap on the wrist, when these billion-dollar companies should have been slammed by osha for failing to protect workers—and would have been under any other Labor Secretary.” Berkowitz, who now directs the National Employment Law Project’s worker-health-and-safety program, said, “These are Black and brown workers. I just don’t think this Administration cares about them at all.”
Even if Scalia is not, like Trump, openly racist, his agency’s policies have disproportionately harmed Blacks and Latinos. One reason such people have made up an outsized share of the pandemic’s victims is that many have so-called essential jobs: delivery drivers, home health aides, janitors. In failing to safeguard these workers, the Labor Department has signaled that their lives don’t matter as much as those of desk workers in whiter, more rarefied professions.
As states have begun reopening their economies, employees have feared returning to workplaces that don’t appear to be safe. In May, Bailey Yeager, a director at a human-resources company called shrm, was asked for feedback about a proposal that she return to her office. Like most white-collar employees, she’d spent much of the spring working from her home, in Alexandria, Virginia, where shrm is based. Yeager, concerned about infecting her two daughters, requested that she be allowed to continue working remotely “until returning to work is both more widespread regionally and there is a decline in the metrics regarding cases/hospitalizations.” She also asked to see shrm’s plans for reopening safely, while adding that she was “flexible” about returning to the office. Two weeks later, Yeager, who in recent years had received glowing performance reviews and several promotions, was fired. Three other employees who’d expressed similar worries, including two with preëxisting medical conditions, were also terminated.
Insuring that employees are not subjected to retaliation for engaging in certain protected activities is a key responsibility of the Department of Labor—in particular, of osha, which enforces the whistle-blower provisions of more than twenty laws. A survey conducted in May by the National Employment Law Project revealed that one in eight workers “has perceived possible retaliatory actions by employers against workers in their company who have raised health and safety concerns.” The survey found that Black workers were more than twice as likely as white workers to have witnessed such retaliation.
In May, Loren Sweatt, osha’s principal deputy assistant secretary, appeared before the House Committee on Workforce Protections and declared, “You could not get a better spokesperson for whistle-blower protection than the Secretary of Labor.” Three months later, an audit by the inspector general revealed that this was false: even as whistle-blower complaints have surged during the pandemic, the agency has left five whistle-blower-investigator positions vacant, inhibiting osha’s ability to handle the caseload.