Almost exactly 10 years ago, on April 20, 2010, the Deepwater Horizon oil rig exploded, killing 11 workers and seriously injuring 17 more. To clean it up, BP hired more than 40,000 local residents to remove oil from the beaches and shoreline. They would be working under the blistering summer sun, greatly increasing their risk of heat-related disease or death.
I ran the federal Occupational Safety and Health Administration from 2009 through January 2017. Long before the oil reached the Gulf Coast shores, I flew to Louisiana and met with leaders of the Coast Guard, the Environmental Protection Agency and other agencies to plan the multiagency effort to ensure that BP protected those workersâ€™ safety and health. OSHA adapted heat disease prevention policies used by the U.S. military to protect soldiers deployed to Iraq and Afghanistan, and pushed BP to comply with them. The rules included extensive rest breaks in the shade, and liquids for rehydration. We had no legal authority to do so, but BP compliedâ€”and over the four-month effort, not a single worker was seriously sickened or killed by heat.
This year, a new crisis has put a much bigger swath of the workforceâ€”far more Americans, in many industriesâ€”unexpectedly in harmâ€™s way. Millions of American workers are literally risking their lives every day on the job, saving desperately ill patients, ensuring food and medicine get to our stores and homes, and keeping the public safe. Every day there are reports of physicians, nurses, police and emergency responders, even bus drivers, who have died from Covid-19 after their employers failed to implement appropriate infection control measures or provide the adequate respiratory protection or sanitary facilities needed to prevent exposure in the course of their work.
Yet OSHA, the federal agency under the Department of Labor charged with protecting these workers, is almost completely missing from the federal response to the Covid-19 pandemic.
Instead of pressing employers on worker safety, Secretary of Labor Eugene Scalia and President Donald Trumpâ€™s political appointees at the Labor Department have decided to tell workers there is little OSHA can do because it has no standard covering airborne infectious diseases. The law prohibits employers from retaliating against workers for raising safety and health concerns, yet when workers are fired for lodging complaints about safety conditions in their hospitals or warehouses, this administration has been mute.
Existing OSHA regulations require a minimal effort of employers, such as providing soap and water, but I have yet to hear anyone from the Labor Department or the White House announce this fact to the public. Instead, workers in a wide range of industries who face the risk of fatal infection have taken matters into their own hands, launching job actions and strikes to force their employers into providing even basic protections.
We need more than guidance.
OSHA can, and should, be front and center in our efforts to protect these truly essential workers. The agencyâ€™s dedicated career staff has great expertise in worker protection, and the agency has issued useful guidance about Covid-19. But guidance is nonenforceable. This is simply shameful.
Thatâ€™s because besides using its bully pulpit, OSHA has clear options for how to help. It could start by announcing that, using the general duty clause of the OSHA law, the agency will now issue citations against employers who egregiously fail to follow guidance from the Centers for Disease Control and Prevention. News coverage of these citations would have a huge effectâ€”a recent study reported one OSHA news release is as effective as 210 inspections in reducing workplace hazards.
For health care workers, the most important single action OSHA could and should take right now is to issue an emergency temporary infectious disease standard, requiring health care institutions to develop and implement infection-control plans that follow CDC guidance. (When Congress returns from its recess, it will consider legislation requiring OSHA to issue such a standard.)
In crises, OSHA generally does not issue fines except in cases in which the employer puts its workers at extreme risk. Hospitals that try but fail to obtain needed protective equipment would not be penalized. But the existence of a standard, backed up by the threat of inspections, would motivate many employers to better protect their workers.
I know OSHA could issue this emergency standard with little difficulty because we began drafting such a rule during my tenure. Three years ago, the new administration launched a massive deregulatory effort, halting all work on the infectious disease rule and many other protections.
The larger concern is that OSHA is suffering from malign neglect, reflecting the low regard the president has for the health and safety of the nationâ€™s workers. The agency has not had an assistant secretaryâ€”the person who actually runs the agency day to dayâ€”since I left 39 months ago. There hasnâ€™t even been a nominee for the position in almost a year. Half of the senior executive positions are empty, and, while the nationâ€™s workforce has gotten much larger, the size of the inspectorate is the smallest it has been in more than 40 years. It would take 165 years for OSHA to inspect every workplace under its jurisdiction just one time.
The Trump administration should not wait for Congress to force it to take badly needed action. This crisis has demonstrated the vital importance of a safe and healthy workforce. OSHA is the only federal agency with the authority and expertise to ensure that worker protection is not sacrificed in the efforts to tame this epidemic and can accomplish this using modest and mostly nonpunitive tools. The administration needs to do its part so every worker who risks their life taking care of patients or stocking our stores or harvesting our crops is able to survive this terrible pandemic, safe and healthy.
This article was originally published at Politico on April 7, 2020. Reprinted with permission.
About the Author: David Michaels served as assistant secretary of Labor for occupational safety and health from 2009 to 2017. He is professor of environmental and occupational health at the Milken Institute School of Public Health, George Washington University, and is the author ofÂ The Triumph of Doubt: Dark Money and the Science of Deception.