OSHA Is Failing Essential Workers. Why Not Let Them Sue Their Bosses?

Jeff Schuhrke July 29, 2020

Trump’s OSHA has failed to protect workers. A new report says it’s time for an overhaul of the agency. (Photo by Joe Raedle/Getty Images)

Since the coro­n­avirus pan­dem­ic hit the Unit­ed States ear­ly this year, front­line work­ers in sec­tors deemed essen­tial” have staged hun­dreds of strikes, sick­outs and oth­er job actions to protest unsafe work­ing conditions.

At hos­pi­tals, ware­hous­es, meat pro­cess­ing plants, fast-food restau­rants, trans­port and deliv­ery ser­vices, and retail and gro­cery stores, work­ers have demand­ed their employ­ers do more to pre­vent the spread of the virus — includ­ing keep­ing work­sites clean and pro­vid­ing ade­quate per­son­al pro­tec­tive equip­ment (PPE). They have been aid­ed in many cas­es by unions and new ini­tia­tives like the Emer­gency Work­place Orga­niz­ing Com­mit­tee—a joint project of the Unit­ed Elec­tri­cal, Radio and Machine Work­ers of Amer­i­ca and the Demo­c­ra­t­ic Social­ists of America.

Mean­while, the gov­ern­ment agency tasked with ensur­ing on-the-job safe­ty — the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA) — has received over 26,000 Covid-relat­ed com­plaints at the fed­er­al and state lev­el, but to date has issued cita­tions against only four employ­ers, all of them nurs­ing homes.

While the AFL-CIO has called on OSHA to adopt an emer­gency tem­po­rary stan­dard on infec­tious dis­eases as an imme­di­ate, enforce­able mech­a­nism to keep work­places safe dur­ing the pan­dem­ic, the agency has refused, say­ing there’s a lack of com­pelling evi­dence” that dis­eases like Covid-19 pose a grave threat” to work­ers. Instead, OSHA has put for­ward non-bind­ing guide­lines around coronavirus.

Crit­ics like Peter Doo­ley of the Nation­al Coun­cil for Occu­pa­tion­al Safe­ty and Health say OSHA is miss­ing in action” and that the agency’s lack­lus­ter pan­dem­ic response is a nation­al disgrace.”

In a new report released today, the Cen­ter for Pro­gres­sive Reform (CPR) — a net­work of over 60 schol­ars advo­cat­ing pub­lic pro­tec­tions around health, safe­ty and the envi­ron­ment — is call­ing on Con­gress to sig­nif­i­cant­ly strength­en the Occu­pa­tion­al Safe­ty and Health Act, the leg­is­la­tion that first cre­at­ed OSHA near­ly 50 years ago.

Katie Tra­cy, senior pol­i­cy ana­lyst at CPR and a coau­thor of the report, says OSHA’s poor response to the pan­dem­ic is emblem­at­ic of sev­er­al decades of choic­es by our nation­al and state lead­ers that pri­or­i­tize short-term prof­its ahead of people.”

Since 1970, Con­gress and the White House have hol­lowed out [OSHA], deny­ing it resources and trim­ming its author­i­ty, leav­ing it in a weak state,” adds CPR mem­ber schol­ar Rena Stein­zor, anoth­er report coauthor.

As a result of this hol­low­ing out, the agency now has only one inspec­tor for every 79,262 work­ers. The report explains that with so few resources, OSHA has the capa­bil­i­ty to per­form only one inspec­tion per work­site every 134 years.

CPR mem­ber and report coau­thor Michael C. Duff points out that Black, Lat­inx and oth­er peo­ple of col­or are dis­pro­por­tion­ate­ly rep­re­sent­ed” in some of the most high-risk and low-paid jobs deemed essen­tial dur­ing the pan­dem­ic. Our gov­ern­ing insti­tu­tions have done lit­tle to safe­guard these work­ers from the health haz­ards or eco­nom­ic chal­lenges exac­er­bat­ed by Covid-19,” he says.

The CPR report specif­i­cal­ly rec­om­mends the Occu­pa­tion­al Safe­ty and Health Act be amend­ed to allow work­ers to enforce the law them­selves by fil­ing law­suits under a pri­vate right of action. Such cit­i­zen suits” are already a fea­ture of many oth­er fed­er­al reg­u­la­tions, includ­ing the Fair Labor Stan­dards Act and Clean Air Act, the report notes.

Empow­er­ing work­ers with a pri­vate right of action is crit­i­cal to ensur­ing safer and health­i­er work­places because, even with a robust reg­u­la­to­ry sys­tem, there will always be lim­its on what OSHA has the resources and polit­i­cal will to do,” the report says. When the prospect of a pri­vate law­suit is put on the table, the agency may be more moti­vat­ed, even com­pelled, to pur­sue the seri­ous alle­ga­tions raised by employees.”

The report spells out how a pri­vate right of action would work, includ­ing pro­vi­sions for notice of intent to sue, wait­ing peri­ods, stand­ing, statutes of lim­i­ta­tion, dis­cov­ery, robust reme­dies, and more. Impor­tant­ly, it calls for beefed up whistle­blow­er pro­tec­tions to pre­vent retal­i­a­tion against employ­ees who speak up, as well as an end to arbi­tra­tion agree­ments that require work­ers to for­feit the right to sue their employers.

Fur­ther, the report urges law­mak­ers to expand the Occu­pa­tion­al Safe­ty and Health Act to include pub­lic sec­tor work­ers, farm­work­ers and gig work­ers mis­clas­si­fied as inde­pen­dent con­trac­tors — all of whom were exclud­ed in the orig­i­nal 1970 legislation.

Fix­ing the cur­rent sys­tem requires an updat­ed and vast­ly improved labor law that empow­ers work­ers to speak up about health and safe­ty haz­ards, rather than risk their lives out of fear of los­ing employ­ment and pay,” says CPR board mem­ber and report coau­thor Thomas McGarity.

Tra­cy tells In These Times that as a non­prof­it, CPR doesn’t do polit­i­cal lob­by­ing, but still hopes that some of our allies off and on the Hill will find this con­cept wor­thy of tak­ing up because it would be such an improve­ment over the sta­tus quo.”

Sen­ate Repub­li­cans, mean­while, are fight­ing to include employ­er lia­bil­i­ty pro­tec­tions in any new Covid relief pack­age, warn­ing there will be a sec­ond epidemic…of friv­o­lous coro­n­avirus lawsuits.”

Rather than fight for busi­ness lia­bil­i­ty immu­ni­ty,” Tra­cy says, we need to be empow­er­ing work­ers to enforce the law when OSHA won’t.”

Jeff Schuhrke has been a Work­ing In These Times con­trib­u­tor since 2013. He has a Ph.D. in His­to­ry from the Uni­ver­si­ty of Illi­nois at Chica­go and a Master’s in Labor Stud­ies from UMass Amherst. Fol­low him on Twit­ter: @JeffSchuhrke

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