Protecting Workers From Coronavirus: OSHA Leaves It to Employers

Critics say the federal agency charged with protecting worker safety has played a conspicuously small role during the pandemic.

Adam Ryan, a Target employee in Virginia, says he feels unsafe at work because it is hard to stay six feet away from customers as they move about the store.
Credit...Julia Rendleman for The New York Times

Adam Ryan, a Target employee in Christiansburg, Va., has felt unsafe at work in recent weeks. He finds it difficult to follow the recommendation that he stay six feet away from others because the store is often crowded and customers linger closely while he restocks shelves.

“People will get mad at me when I’m in the area and they want to grab something,” he said. “They just act like it’s business as usual.”

Target has taken steps to address workers’ safety concerns, including providing masks, but Mr. Ryan feels that the company hasn’t gone far enough.

There is little outside pressure on employers to address concerns like Mr. Ryan’s. That’s partly because the federal Occupational Safety and Health Administration, known as OSHA, has so far played a low-profile role in the coronavirus crisis.

The agency, part of the Labor Department, announced last week that there would be few inspections of workplaces aside from those in high-risk activities like health care and emergency response. Instead, it called on employers to investigate coronavirus-related issues on their own, even in hot spots such as the food supply chain.

“I wish they were more involved,” John Henshaw, who led the agency during the George W. Bush administration, said of OSHA’s role. “Certainly meatpacking — I don’t understand why they wouldn’t emphasize it.”

At the same time, OSHA has provided few of the incentives, like new workplace rules dealing specifically with infectious disease, that typically prompt employers to address hazards.

Last week, in guidelines for “Opening Up America Again,” the White House listed “Protect the health and safety of workers in critical industries” as a core responsibility of the states, even though this is one of OSHA’s key missions.

“Most states have NO ability to do this,” David Michaels, who led the agency during the Obama administration, wrote in an email.

Dr. Michaels said in an interview that OSHA might understandably focus inspections on certain high-risk industries during a crisis that is straining its resources. But he said this made it even more important for the agency to tell employers how to keep workers safe and clarify their responsibilities for doing so.

Instead, “they’re doing the opposite,” he said. “It’s really disheartening.”

A Labor Department spokeswoman said that notwithstanding the new enforcement approach, “if OSHA were to find flagrant violations of the law, the agency would use all enforcement tools available.” The spokeswoman said that OSHA had received about 2,400 coronavirus-related complaints by Tuesday and that it had resolved about 1,400. She said that the agency had yet to issue a citation to an employer but that it had six months to complete its investigations.

Mr. Ryan, the Target employee in Virginia, has not filed a complaint with OSHA about his concerns. Target cited a policy of limiting the number of shoppers when necessary. It said that it invited workers to raise concerns and had a process in place for addressing them, but that workers had not typically complained about the difficulty of social distancing at that location.

Some workplace-safety experts expressed concern that OSHA had largely exempted Covid-19 cases from a general requirement that employers determine whether a worker became seriously ill on the job, and that they report such cases to the agency and keep records of them.

In guidance issued on April 10, the agency said it would not enforce the record-keeping requirement for Covid cases until further notice, except when the employer could obtain clear evidence that the infection was work related, a substantially higher bar than before. Only employers in health care, emergency response or prisons must apply the standard record-keeping procedure in Covid cases.

The government relies on such reporting in several ways, like deciding which industries and workplaces to inspect in the future. Record-keeping also allows employers to figure out where their problems are and how to address them, making it particularly important when the agency is directing most employers to investigate coronavirus outbreaks on their own, experts said.

“First and foremost, they’re supposed to record so they themselves have the information necessary to determine where there are problems and when to do something about them,” said Jordan Barab, a top OSHA appointee during the Obama administration.

The Labor Department said in a statement that the pause in enforcing its record-keeping requirement was to “help employers focus their response efforts on implementing good hygiene practices in their workplaces and otherwise mitigating Covid-19’s effects.”

Former OSHA officials also note that the agency has not issued a so-called emergency temporary standard that would instruct employers across a variety of industries to put safety protocols into effect and raise the prospect of fines for failing to do so.

Such standards can govern physical setups, like whether to install barriers between workstations; workplace rules, like restrictions on the number of customers inside a store; and the use of protective equipment. A standard could even require stores to temporarily bar customers and switch to pickup and delivery only, though such a move would probably invite litigation.

The Labor Department spokeswoman said, “OSHA’s current guidances, standards and regulations fully outline the rights and protections of workers from dangers such as the coronavirus.” She pointed to guidance that the agency recently published for several industries, including retail, airlines and waste management.

But such guidance tends to be highly discretionary — for example, telling retail employers to “consider restricting the number of customers allowed inside the facility” and to “consider providing alcohol-based hand sanitizers.” The guidance list also neglects some key industries, like meatpacking, that OSHA sometimes struggled to regulate even before the crisis.

That has left a vacuum of oversight in workplaces where the virus is taking a toll, former OSHA officials said.

Numerous retail workers have died of Covid-19, including employees at a Trader Joe’s in New York State, a Walmart near Chicago and a Whole Foods in Massachusetts, though it is unclear where they were exposed to the virus. Hundreds of workers at a meatpacking plant in South Dakota have been infected, and at least one has died.

A worker at a poultry processing plant in Delaware who asked not to be identified for fear of retaliation said it was typically impossible for him to maintain six feet between himself and other workers. His job is to pick fallen poultry parts from the floor, clean them and place them back on the line, a task requiring him to circulate between two parallel lines of workers that can be less than six feet apart.

The worker said that the plant had erected barriers between workers on some of its lines, but that the hallways were typically crowded during shift changes.

Workers at grocery stores described varying approaches to protective equipment, spacing and foot traffic. Marian Meszaros, who works in the meat department of a Best Market on Long Island, said that her store tried to limit the number of shoppers, but that it felt no less crowded than it did before the pandemic.

“The customers are still on top of us,” Ms. Meszaros said. “They all huddle around the meat case.”

A Best Market spokesman said that “store management actively monitors crowd levels throughout the day and limits customers at busy times,” and that it had placed stickers, markers and signs throughout the store to encourage social distancing.

Senator Patty Murray of Washington, the top Democrat on the chamber’s health and labor committee, complained about the lack of a standard.

“In one grocery store, they are limiting the number of people going in, they’ve got plastic up as protection for workers,” she said. “In another one, they’re jammed in the aisles.”

Ms. Murray said she and other Democratic senators had sought language requiring an OSHA emergency standard in coronavirus legislation last month but could not overcome Republican opposition.

One difficulty in issuing a workplace standard is the cumbersome federal rule-making process built up over decades.

But Ann Rosenthal, who recently retired as the Labor Department’s top OSHA lawyer after serving administrations of both parties, said Congress could suspend the typical rule-making process for OSHA to expedite a new standard on infectious diseases.

In the meantime, experts said, the agency could take other steps. Mr. Henshaw, the OSHA leader under Mr. Bush, said he was sympathetic to the idea of relaxing record-keeping requirements but would like to see more specific guidance on how employers could minimize infections — in essence, “We’ll give you a break here, but you have to do this.” He acknowledged, however, that guidance was not mandatory.

Ms. Rosenthal said OSHA could issue guidance interpreting existing standards governing sanitation and protective equipment for the coronavirus era, which could effectively require more frequent breaks for hand-washing, as well as enough soap and water.

Through the agency’s combination of policy rollbacks and inaction, she said, “they’re sending signals to employers that they don’t have to do anything.”