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

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.”