Despite growing pressure from labor groups and worker advocates on Capitol Hill, the Biden Administration continues to delay an emergency COVID-19 worker safety protection that was supposed to launch March 15—and it’s still unclear when (or even if) the measure will be enacted.
“We have called for an ETS since the beginning of the COVID-19 pandemic, along with other labor unions, and we believe it is imminently necessary to protect workers. While the last administration ignored us, we were encouraged when President Biden included the ETS in the Executive Order on Protecting Worker Health and Safety.”
Although mandated by President Biden’s January 21 executive order, the “emergency temporary standard,” as it’s called, still hasn’t seen the light of day.
As Representative Bobby Scott, chair of the House Committee on Education and Labor, told The Progressive last year, “Many lives could be saved if OSHA took action. . . . There is presently no enforceable regulation to protect workers from airborne infectious diseases.”
Even as roughly half of all Americans have received at least one vaccine dose, millions of “essential” workers remain in danger, including meatpackers, farmworkers, delivery and warehouse workers, and supermarket employees, who often must toil without clean safety masks, other vital recommended PPE, and adequate physical distancing—all of which the emergency standard would require and enforce.
According to an April 6 statement, newly minted Labor Secretary Marty Walsh is said to have “reviewed the materials, and determined that they should be updated to reflect the latest scientific analysis of the state of the disease.” At the time, the Department of Labor claimed that Walsh had “ordered a rapid update based on CDC analysis and the latest information regarding the state of vaccinations and the variants.”
Yet that updated review—which must go through the Office of Management and Budget’s Office of Information and Regulatory Affairs—has still not been initiated.
[UPDATE: Shortly after The Progressive published this article, OSHA announced it was sending a draft temporary emergency standard to the Office of Management and Budget for review, this after significant pressure from Democratic members of Congress in a letter to the President.]
Now unions and advocates are stepping up the pressure. On Friday, April 23, the American Federation of Government Employees, representing more than 700,000 federal workers, sent a letter to Secretary Walsh, to “strongly urge the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) without further delay.”
As the union's President Everett B. Kelley reminded the Biden Administration, “We have called for an ETS since the beginning of the COVID-19 pandemic, along with other labor unions, and we believe it is imminently necessary to protect workers. While the last administration ignored us, we were encouraged when President Biden included the ETS in the Executive Order on Protecting Worker Health and Safety.”
That same day, the House Committee on Education and Labor announced April 30 hearings on the emergency standard and its delay. “Unfortunately, the Department has yet to issue an Emergency Temporary Standard that would provide enforceable workplace safety standards,” the Democrat-led committee stated.
So why has there been a more-than-month-long delay in an enforceable standard that could help save workers’ lives while the deadly pandemic rages on?
Multiple sources in Washington, D.C. with knowledge of the situation confirm to The Progressive that the delay, as one put it, is coming from “the top political levels of the White House.”
“That is not true,” responds Kevin Munoz, assistant White House press secretary, in an interview with The Progressive. “This is really a question for the Department of Labor.”
Despite repeated requests for details on what science needs updating and when the standard might come to life, the Department of Labor insists that no further information is available.
The White House has received pressure from several industry groups and some House Republicans to either scuttle the standard or to “solicit feedback from business owners and workers,” as GOP representatives urged in a letter to the Department of Labor in March, according to a report in Safety and Health Magazine.
Several industry groups have also lobbied against the standard, including the U.S. Chamber of Commerce’s “Coalition on Workplace Safety,” and the American Hospital Association. That’s right: In a March 2020 “action alert” to its members, this health care industry organization pleaded, “contact your representative and urge House leadership to withdraw this provision” from broader coronavirus funding legislation.
California enacted one of the nation’s two state emergency standards so far (along with Virginia), but industry groups are aggressively fighting the rule, with coalitions of agribusiness and employer groups filing lawsuits to reverse or delay the standard. As the National Law Review reported in January, “employers’ groups are fighting back. On December 17, the National Retail Federation, National Federation of Independent Business, and three California employers…filed suit against Cal/OSHA,” urging the courts to render the standard “null and void.”
The delays are at odds with official guidance from the Centers for Disease Control, notes the American Federation of Government Employees, in its letter to Biden. “Our members are often told by their employing agencies that they are following CDC guidance, but our members report that this is not always the case at their workplaces.”
These workers, including staff at veteran’s medical centers, federal prisons, and government food safety inspectors, “have had to work without appropriate personal protective equipment and in environments where social distancing and other mitigation practices are not enforced.”
In an email to The Progressive, Milly Rodriguez, the union’s lead health and safety specialist, stresses that current COVID-19 guidelines are “not enough because employers choose whether they follow them.” She adds, “The many OSHA complaints that were filed and closed with only a letter to the employer show that without having something to cite OSHA can’t do much either. Workplace exposures are a major driver of outbreaks, of increases in the number of cases, so it’s important to have a standard all employers can follow.”
Despite nationwide vaccination progress, “the vast majority of workers” are still not vaccinated yet must withstand dangerous conditions without protections, says Marcy Goldstein-Gelb, co-director of the National Committee on Occupational Safety and Health (NCOSH).
“Every day these essential workers that feed us, that produce our meals and make our economy run, are still putting themselves at risk,” she adds. These workers remain “exposed to new variants, most are still not vaccinated, and it’s making them sick and killing some of them every day. This is unacceptable.”
Rebecca Reindel, the AFL-CIO’s director of occupational safety and health, tells The Progressive, “An emergency OSHA standard is still needed to protect workers from COVID-19. The toll of workers claimed by this virus has been enormous, through exposures in the workplace.”
Through April 23, according to COVID-19 data compiled by the Food and Environment Reporting Network, “at least 89,757 workers (58,770 meatpacking workers, 17,920 food processing workers, and 13,067 farmworkers) have tested positive for COVID-19.”
As The Progressive reported in February, several new studies show that workers—particularly in the food industry—are at heightened risk of COVID-19 exposure. One study by the University of California at San Francisco found that deaths among all working-age adults have surged by 22 percent during the pandemic, while death rates soared by 39 percent for food and agricultural workers, and 28 percent for transportation and logistics workers.
Reindel notes that with so many states and localities “reopening,” and even more workers returning on the job, the emergency standard is urgently needed. “We know how to prevent exposure to the virus in the air and many workplaces and laws did not address this early on. As businesses are reopening (again), we need to ensure that prevention measures are put in place through a standard, so we can put an end to this pandemic.”
David Michaels, the OSHA administrator under President Barack Obama and now a professor at the George Washington School of Public Health, tells The Progressive, “Across the country, governors are loosening mitigation measures at the same time the highly infectious virus variants are driving up cases. Workers who spend eight to ten hours a day, often in poorly ventilated spaces, are at particularly high risk.” Any further delay in the OSHA emergency standard, he says, “means more workers will get sick, and the disease will continue to surge.”
One reason the standard is so critical, both Reindel and Michaels stress, is that it would hold employers accountable for COVID-19 safety in the workplace. “Workers don’t have the same control in their workplaces as we do in our personal lives,” Reindel explains.
As Michaels puts it, the emergency standard would “basically follow CDC guidelines,” allowing the agency to implement “common sense measures… to make sure that workers are protected.”
“These are measures that workers can’t take themselves,” he adds. “It is up to employers to make their workplaces safe.”