This 2021 edition of Death on the Job: The Toll of Neglect marks the 30th year the AFL-CIO has produced a report on the state of safety and health protections for America’s workers. This report features national and state information on workplace fatalities, injuries, illnesses, the workplace safety inspections, penalties, funding, staffing and public employee coverage under the Occupational Safety and Health Act. It also includes information on the state of mine safety and health and the COVID-19 pandemic.
Fifty years ago on April 28, the OSH Act went into effect, promising every worker the right to a safe job. More than 627,000 workers now can say their lives have been saved since the passage of the OSH Act. Since that time, workplace safety and health conditions have improved. But too many workers remain at serious risk of injury, illness or death as chemical plant explosions, major fires, construction collapses, infectious disease outbreaks, workplace assaults and other preventable workplace tragedies continue to occur. Workplace hazards kill and disable more than 100,000 workers each year—5,333 from traumatic injuries and an estimated 95,000 from occupational diseases. The job fatality rate remains stagnant, and job injuries and illnesses continue to be severe undercounts of the real problem.
Under President Trump, the political landscape and direction of the job safety agencies shifted dramatically from the Obama administration. President Trump ran on a pro-business, deregulatory agenda, promising to cut regulations by 70%. His administration aggressively sought to repeal or weaken many Obama administration rules. Through executive orders, legislative action, and delays and rollbacks in regulations, the Trump administration proposed to cut the job safety budget, rolled back workplace enforcement and weakened workers’ rights to safety protections. For the first two years of the administration, with Republicans in control of Congress, there was little oversight and only a limited ability to block these regulatory attacks and rollbacks. There was little action to address serious hazards like workplace violence, and no accountability or leadership of important agency work such as the infectious disease rulemaking that began in 2009. As a result, important safety and health protections were repealed or weakened.
From 2017 to 2019, job safety and health enforcement at both the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) largely had been maintained, but in the fall of 2019, OSHA began reducing the number of inspections involving significant cases and complex hazards, and in the COVID-19 pandemic, was largely absent from workplaces where it has the authority and responsibility to enforce workplace safety laws. At both job safety agencies, the number of inspectors declined significantly; OSHA reached its lowest number of job safety inspectors since the early 1970s, when the agency opened, and MSHA began consolidating coal and metal/nonmetal inspectors into one. Just last year, the number of OSHA inspectors increased for the first time in years, but these figures remain low compared with previous years, and relative to the massive responsibility of the agency.
President Trump proposed cuts in in key worker safety and health programs in the budgets for FY 2018–FY 2021, seeking to cut funding for coal mine enforcement; eliminate OSHA’s worker safety and health training program and the Chemical Safety Board; and slash the National Institute for Occupational Safety and Health (NIOSH) job safety research budget by more than 40%. Congress rejected these proposed cuts, providing an OSHA budget that still only amounts to $3.97 to protect each worker.
The election of President Biden was critical to an improved federal response to the COVID-19 pandemic and to improving working conditions and reducing workplace injuries, illnesses and deaths. On his second day in office, he issued executive orders to launch a dedicated public health response to the pandemic, and to protect workers through job safety COVID-19 protections and enforcement. President Biden has appointed and nominated strong candidates focused on worker protection to lead job safety and health agencies and labor agencies. Immediately upon taking office, he appointed a longtime United Steelworkers (USW) safety and health leader, James Frederick, as acting assistant secretary for occupational safety and health. In April 2021, the Senate confirmed Marty Walsh as secretary of labor. With a background in the construction trades, Walsh is a strong worker advocate who has served in the Massachusetts House of Representatives and as Boston mayor. In April 2021, President Biden nominated Doug Parker to be assistant secretary of labor for occupational safety and health—the head of OSHA. Parker is the current head of the California state OSHA program, served on the Biden-Harris transition team, served in chief policy roles at MSHA and was executive director of Worksafe—a nonprofit organization focused on workplace injury, illness and death prevention. John Howard continues to serve as the head of NIOSH. This is a sharp contrast to President Trump, who nominated corporate officials to head the job safety agencies—people who had records of opposing enforcement and regulatory actions.
The Democratic majority in Congress has improved the environment for occupational safety and health protections. In the 116th Congress, Democrats moved aggressively on a pro-worker agenda, introducing progressive legislation and conducting rigorous oversight of the Trump administration’s policies and programs—but pro-worker legislative progress stalled in the Republican-controlled Senate, where it was difficult or impossible to move emergency public health measures. Now with a Democratic majority in both houses, Congress has focused on oversight of the nation’s COVID-19 response and protection as well as economic relief, and has been able to move on other bills that are critical to saving workers’ lives and livelihoods, such as those on workplace violence and improving workers’ right to organize unions.
Nearly five decades after the passage of the OSH Act, the toll of workplace injury, disease and death remains too high. There is much more work to be done.
This 2021 edition of Death on the Job: The Toll of Neglect marks the 30th year the AFL-CIO has produced a report on the state of safety and health protections for America’s workers. April 28, 2021, marked 50 years since the Occupational Safety and Health Act went into effect, promising every worker the right to a safe job. More than 627,000 workers now can say their lives have been saved since the passage of the OSH Act.
Over the last 50 years, there has been significant progress made toward improving working conditions and protecting workers from job injuries, illnesses and deaths. Federal job safety agencies have issued many important regulations on safety hazards, silica, coal dust and other health hazards, strengthened enforcement and expanded worker rights. These initiatives have undoubtedly made workplaces safer and saved lives. But much more progress is needed.
The Trump administration worked to dismantle this progress, attacking workplace safety protections and longstanding structures for issuing future protections, cutting agency budgets and staff, and totally failing to respond to the COVID-19 pandemic in workplaces.
The Democratic majority in the House of Representatives helped improved oversight, accountability and action on critical worker protections, and took opportunities to oppose anti-worker attacks by the Trump administration. However, the Republican-controlled Senate blocked much-needed protections and reforms in job safety. Now with a Democratic majority in all of Congress, there are more opportunities for action on long-needed worker protection legislation.
The recent election of President Biden brings promise and hope to a nation and world decimated by the COVID-19 pandemic, and to working people who have struggled for years under anti-worker policies that make their workplaces more dangerous.
Fifty years after the passage of the nation’s job safety laws, the toll of workplace injury, illness and death remains too high, and too many workers remain at serious risk. There is much more work to be done.
The High Toll of Job Injuries, Illnesses and Deaths
- 275 workers died each day from hazardous working conditions.
- 5,333 workers were killed on the job in the United States.
- An estimated 95,000 workers died from occupational diseases.
- The job fatality rate was 3.5 per 100,000 workers, the same as the previous year.
- Latino and Black worker fatalities increased; these workers are at greater risk of dying on the job than all workers.
- Employers reported nearly 3.5 million work-related injuries and illnesses.
- Musculoskeletal disorders continue to make up the largest portion (30%) of work-related injuries and illnesses.
- Underreporting is widespread—the true toll of work-related injuries and illnesses is 7.0 million to 10.5 million each year.
States with the highest fatality rates in 2019 were:
- Alaska (14.1 per 100,000 workers)
- Wyoming (12.0 per 100,000 workers)
- North Dakota (9.7 per 100,000 workers)
- Montana (7.8 per 100,000 workers)
- West Virginia (6.4 per 100,000 workers)
Industries with the highest fatality rates in 2019 were:
- Agriculture, forestry, and fishing and hunting (23.1 per 100,000 workers)
- Mining, quarrying, and oil and gas extraction (14.6 per 100,000 workers)
- Transportation and warehousing (13.9 per 100,000 workers)
- Construction (9.7 per 100,000 workers)
- Wholesale trade (4.9 per 100,000 workers)
During the COVID-19 pandemic:
- America’s workplaces have been a primary source of COVID-19 outbreaks, with thousands of workers infected and dying. However, workplace infection and outbreak information is limited because there is no national surveillance system.
- Racial inequities in working conditions, disease and death were made worse and exploited.
- The Trump administration’s response to the need for workplace safety protections was wholly inadequate; instead of providing strong requirements, it ignored science, and offered weak recommendations that were voluntary and plagued with political interference and corporate influence.
- The federal Occupational Safety and Health Administration (OSHA) has so far cited 346 employers for COVID-19 violations that resulted in an average penalty of $3,751 per violation.
- Several state OSHA plans have issued emergency temporary standards for COVID-19, and other states have issued executive orders requiring employers to implement workplace safety protections, or are enforcing current OSHA standards in their states— but many workers remain without strong protections.
Workplace violence remains a serious and growing problem:
- Workplace violence deaths increased to 841 in 2019, while more than 30,000 violence-related lost-time injuries were reported.
- Workplace violence is the third-leading cause of workplace death.
- 454 worker deaths were workplace homicides.
- Women workers are at greater risk of violence than men; they suffered two-thirds of the lost-time injuries related to workplace violence, and were five times more likely to be killed by a relative or domestic partner in the workplace than men.
- There is no federal OSHA standard to protect workers from workplace violence.
Latino and Black workers, often laboring in dangerous working conditions, are more likely to die on the job:
- The Latino fatality rate rose sharply to 4.2 per 100,000 workers in 2019, higher than the national average and a 14% increase from the previous year.
- Deaths among all Latino workers increased in 2019: 1,088 deaths, compared with 961 in 2018. Some 66% of those who died were immigrants.
- The Black worker fatality rate of 3.6 per workers continues to be higher than the national average.
- 634 Black workers died on the job—the highest number in more than two decades.
Older workers are at high risk. In 2019:
- More than one-third of workplace fatalities occurred among workers ages 55 or older.
- Workers 65 or older have nearly three times the risk of dying on the job as other workers, with a fatality rate of 9.4 per 100,000 workers.
The cost of job injuries and illnesses is enormous—estimated at $250 billion to $330 billion a year.
Job Safety Oversight and Enforcement
OSHA resources in FY 2020 still are too few and declining:
- There are only 1,798 inspectors (774 federal and 1,024 state) to inspect the 10.1 million workplaces under the Occupational Safety and Health Act’s jurisdiction.
- The number of OSHA inspectors is near its lowest number since the agency opened 50 years ago.
- There is one inspector for every 82,881 workers.
- The current OSHA budget amounts to $3.97 to protect each worker.
Penalties in FY 2019 still are too weak
- The average penalty for a serious violation was $3,923 for federal OSHA.
- The average penalty for a serious violation was $2,137 for OSHA state plans.
- The median penalty for killing a worker was $12,144 for federal OSHA.
- The median penalty for killing a worker was $6,899 for state OSHA plans.
- Only 110 worker death cases have been criminally prosecuted under the Occupational Safety and Health Act since 1970.
Much Work Remains to Be Done
Workers need more job safety and health protection, not less. We call on:
- OSHA and the Mine Safety and Health Administration (MSHA) to issue emergency COVID-19 safety standards to protect workers immediately from the virus that has ravaged our country and our workplaces.
- OSHA and MSHA to fully enforce these protections to hold employers accountable for not following workplace safety laws.
- OSHA to promulgate a permanent standard to protect workers from infectious diseases.
- OSHA to increase attention to the serious safety and health problems faced by Latino, Black, immigrant and aging workers.
- OSHA and MSHA to fully implement new rules on injury reporting/anti-retaliation and coal dust.
- OSHA to issue a workplace violence standard for health care and social service workers. The Senate should pass legislation to ensure this is done.
- OSHA and MSHA to develop and issue rules on emergency response and silica in mining.
- The Environmental Protection Agency to fully implement the Toxic Substances Control Act to protect workers from chemical exposures.
- Congress to increase funding and staffing at job safety agencies.
- Congress to pass the Protecting America’s Workers Act to extend the Occupational Safety and Health Act’s coverage to workers currently excluded, strengthen civil and criminal penalties for violations, enhance antidiscrimination protections, and strengthen the rights of workers, unions and victims.
- Congress to pass the Protecting the Right to Organize (PRO) Act so that workers can freely form a union without employer interference or intimidation, organize for safe jobs, and hold employers and job safety agencies accountable.
The nation must renew its commitment to protect workers from injury, disease and death, and make these protections a high priority. Employers must meet their responsibilities to protect workers and be held accountable if they put workers in danger. Only then can the promise of safe jobs for all of America’s workers be fulfilled.
Job Fatalities, Injuries and Illnesses
In 2019, 5,333 workers lost their lives on the job as a result of traumatic injuries, an increase from 2018, according to fatality data from the Bureau of Labor Statistics (BLS). The rate of fatal job injuries in 2019 remained the same as 2018, at 3.5 per 100,000 workers.2 Each day in this country, an average of 15 workers die because of job injuries—women and men who go to work, never to return home to their families and loved ones. This does not include workers who die from occupational diseases, estimated to be 95,000 each year.3 Chronic occupational diseases receive less attention, because most are not detected until years after workers have been exposed to toxic chemicals, and because occupational illnesses often are misdiagnosed and poorly tracked. There is no national comprehensive surveillance system for occupational illnesses. In total, about 275 workers die each day due to job injuries and illnesses. The cost of these injuries and illnesses is enormous—estimated at $250 billion to $330 billion a year.4,5
Workplace deaths drastically increased for Latino workers in 2019, immediately leading up to the pandemic: 1,088 Latino workers died on the job, an increase from 961 in 2018 and 903 deaths in 2017. The fatality rate among Latino workers (4.2 per 100,000) is now the same as the rate in 2008—a 14% increase from 2018 and 20% higher than the overall job fatality rate of 3.5 per 100,000 workers. The job fatality rate for Latino workers peaked in 2001 at 6.0 per 100,000 workers.
Of the 1,088 Latino workers killed on the job in 2019, 66% were born outside of the United States. The number of deaths due to falls (267) increased 40% from 2018. In 2018, there were 1,028 workplace deaths reported for all immigrant workers, the highest number in at least 12 years; this information was not reported for 2019. In 2020, the Bureau of Labor Statistics updated its disclosure methodology resulting in significantly fewer publishable data for immigrants—leading to less transparency about a significant number of workplace deaths in the United States. This has resulted in previously published data by state, country and gender no longer being available for Latino workers, as well as occupation, industry and other information no longer being available for many other immigrant workers.6 Fatalities among all foreign-born workers continue to be a serious problem. Targeted OSHA enforcement and training programs in workplaces and industries with greater density of Latino and immigrant workers have been effective at reducing job fatalities and improved working conditions. The Trump administration did not carry forward these programs instituted by the Obama administration.
Black workers face an increased risk of work-related deaths, with a job fatality rate of 3.6 per 100,000 workers, an increase from recent years. In 2019, 634 Black workers died— the highest number in more than two decades and a 51% increase in the last decade. In 2018, 615 Black workers died on the job and 530 Black workers died on the job in 2017. The number of deaths due to violence on the job, excluding animals, (162) increased 33% from 2018. The fatal injury rate for Black workers in 2019 remains unchanged from 2018 at 3.6 per 100,000 workers but is an increase from 3.2 in 2017, the first time it has been higher than the overall fatality rate (3.5) in at least five years. The number of serious work injuries and illnesses also increased among Black workers (from 71,600 to 73,930).
Workers 65 or older have nearly three times the risk of dying on the job than all workers, with a fatality rate of 9.4 per 100,000 workers in 2019. Workers ages 55–64 also are at increased risk, with a fatality rate of 4.6 per 100,000 workers. In 2019, 38% of all fatalities (2,005 deaths) occurred in workers ages 55 years or older, with 793 of these deaths occurring in workers ages 65 years or older. People are working longer, and the number of workers ages 55 years and older has increased 84% since 1999. BLS estimates this trend will continue, and that by 2029, one in four workers will be 55 years or older.7
The job fatality rate for all self-employed workers—a group that lacks OSHA coverage— continues to remain high at 13.2 per 100,000 workers, more than four times the rate among wage and salary workers (2.9 per 100,000). In 2019, 1,098 contract workers died on the job—21% of all worker deaths. BLS had begun reporting details on fatalities that involve workers employed as contractors in 2012 in response to concerns about safety and health issues among these workers. This year, these data no longer were reported due to an update in disclosure methodology and reduction in publishable data—decreasing the transparency of workplace deaths among contractors.
States with the highest fatality rates include Alaska (14.1 per 100,000 workers), Wyoming (12.0 per 100,000 workers), North Dakota (9.7 per 100,000 workers), Montana (7.8 per 100,000 workers) and West Virginia (6.4 per 100,000 workers). In 2019, the job fatality rate increased in 24 states, compared with 2018.
In 2019, agriculture, forestry, and fishing and hunting continues to be the most dangerous industry (23.1 deaths per 100,000 workers), followed by mining, quarrying, and oil and gas extraction (14.6 per 100,000 workers), transportation and warehousing (13.9 per 100,000 workers), construction (9.7 per 100,000 workers) and wholesale trade (4.9 per 100,000 workers).
Transportation incidents, in particular roadway crashes, continue to be the leading cause of workplace deaths, responsible for 2,122 or 40% of all fatalities in 2019, followed by deaths from falls, slips and trips (880).
Workplace violence deaths increased (from 828 to 841 deaths) and are now the third-leading cause of job death. Since 2009, the workplace violence injury rate in private hospitals and home health services has more than doubled. During the Obama administration, OSHA enhanced enforcement on workplace violence using the general duty clause of the OSH Act, updated guidance documents and committed to developing a workplace violence standard. But the Trump administration failed to act; under Trump’s watch, OSHA did not meet any of its deadlines to move the workplace violence rulemaking forward. In April 2021, the House passed the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195), requiring federal OSHA to promulgate a standard to protect these workers at especially high risk of violence on the job, and the Senate must act.
In 2019, nearly 3.5 million workers across all industries, including state and local government, had work-related injuries and illnesses that were reported by employers, with 2.8 million injuries and illnesses reported in private industry. Due to limitations in the current injury reporting system and widespread underreporting of workplace injuries, this number understates the problem. The true toll is estimated to be two to three times greater—or 7.0 million to 10.5 million injuries and illnesses a year. In 2019, state and local public sector employers reported an injury rate of 4.6 per 100 workers, significantly higher than the reported rate of 2.8 per 100 among private sector workers.8
Musculoskeletal disorders (MSDs) continue to account for the largest portion of work-related injuries and illnesses, accounting for 30% in private industry. Industries with the highest incidence rates continue to be those in health care and social assistance, transportation, and warehousing and storage. It is important to recognize that the numbers and rates of MSDs reported by BLS represent only a portion of the total MSD problem. The BLS MSD data are limited to cases involving one or more days away from work, the cases for which BLS collects detailed reports. Similar detailed reports are not collected for injuries and illnesses that do not involve lost work time or those that result in job transfer or restriction, but not in time lost from work. Moreover, these figures do not include injuries suffered by public-sector or postal workers, nor do they reflect the underreporting of MSDs by employers.
2 U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2019.
3 Takala, J., P. Hämäläinen, K.L. Saarela, et al., “Global Estimates of the Burden of Injury and Illness at Work in 2012,” Journal of Occupational and Environmental Hygiene, 11:5, 326–337, (2014), DOI: 10.1080/15459624.2013.863131.
4 Liberty Mutual Research Institute for Safety, news release, April 16, 2002.
5 Leigh, J.P., “Economic Burden of Occupational Injury and Illness in the United States,” The Milbank Quarterly, Vol. 89, No. 4, (2011).
6 See bls.gov/iif/oshfaq1.htm#accessingourdata.
7 Bureau of Labor Statistics, Employment Projections—2020–29, news release, Sept. 1, 2020, available at bls.gov/news.release/pdf/ecopro.pdf.
8 U.S. Department of Labor, Bureau of Labor Statistics, Survey of Occupational Injuries and Illnesses, 2019.
Workplace Injuries and Illnesses Are Underreported and Costly
Reported Cases Understate Problem
Over the last decade, there has been significant research documenting that the BLS Survey of Occupational Injuries and Illnesses fails to capture a large proportion of work-related injuries and illnesses—one-third to two-thirds of work-related injuries and illnesses are missed by the survey. Studies comparing injuries captured by the BLS survey with injuries reported to workers’ compensation or other injury reporting systems have found that the BLS survey missed 33% to 69% of work-related injuries.9,10,11,12 A 2018 study of injury reporting in the mining industry found a similar result. Two-thirds of the injuries among miners in Illinois that were reported to workers’ compensation were not reported to MSHA by mine operators as required by the law.13 A study that compared state fatality rates in the construction industry with rates of injuries that result in lost time or job restriction found there was little correlation between the two, and in some cases there was a negative correlation.14 The study observed that multiple factors impacted the reporting and recording of injuries, and concluded that fatality rates are a much more valid measure of risk.
Some of the undercount in the BLS survey is due to injuries excluded from the BLS survey’s scope, including injuries among self-employed individuals, and the design of the survey.15 But other factors, including employees’ reluctance to report injuries due to fear of retaliation, incentive programs that penalize workers who report injuries and drug testing programs for workplace injuries suppress reporting.16 In addition, there are disincentives for employers to report injuries, which include concern about increased workers’ compensation costs for increased reports of injuries; fear of being denied government contracts due to high injury rates; concern about being targeted by OSHA for inspection if a high injury rate is reported; and the promise of monetary bonuses for low injury rates. A 2020 study by BLS investigating additional causes of underreporting indicated that keeping of injury and illness logs was not widely prevalent, and that small establishments were less likely than mid-sized and large establishments to keep records.17
BLS also has recognized the need to make changes in its program in order to collect more complete and accurate injury and illness statistics. It launched a pilot of a Household Survey on Occupational Injuries and Illnesses to collect information on work-related injuries and illnesses through interviews with workers.18 The initial results showed that the survey needed improvements to reduce respondent burden, to improve survey completion and to identify OSHA-recordable injuries, but it has potential to be a supplement to the existing employer-based injury and illness survey. BLS will continue to work on improvements to the survey throughout 2021.19 A 2018 report from the National Academies of Sciences, Engineering and Medicine on occupational safety and health surveillance strongly endorsed BLS conducting this new household survey.20 Hopefully, if the pilot is successful, Congress will provide the necessary funding to continue and expand this important work.
Cost of Occupational Injuries and Deaths
The cost of occupational injuries and deaths in the United States is staggering, estimated at $250 billion to $330 billion a year, according to two recent studies.
The 2019 Workplace Safety Index, published by Liberty Mutual Insurance, estimated the cost of the most disabling workplace injuries to employers at more than $55 billion a year—more than $1 billion per week.21 This analysis, based on 2016 data from Liberty Mutual, BLS and the National Academy of Social Insurance, estimated direct costs to employers (medical and lost-wage payments) of injuries resulting in cases involving five or more days of lost time. If indirect costs also are considered, the overall costs are much higher. Based on calculations used in the previous Liberty Mutual Safety Index, the data indicate that businesses pay between $165 billion and $330 billion annually in direct and indirect (overtime, training and lost productivity) costs on workers’ compensation losses for the most disabling injuries (indirect costs are estimated to be two to five times direct costs).22 It is important to note that the safety index excludes a large number of injury cases (those resulting in less than five days of lost time). In addition, Liberty Mutual bases its cost estimates on BLS injury data. Thus, all the problems of underreporting in the BLS system apply to the Liberty Mutual cost estimates as well.
A 2011 comprehensive study examined a broad range of data sources, including data from the BLS, the Centers for Disease Control and Prevention, the National Council on Compensation Insurance and the Healthcare Cost and Utilization Project, to determine the cost of fatal and nonfatal occupational injuries and illnesses for 2007. This study estimated the medical and indirect (productivity) costs of workplace injuries and illnesses at $250 billion annually, more than the cost of cancer.23 A follow-up analysis found that workers’ compensation covered only 21% of these costs, with 13% borne by private health insurance, 11% by the federal government and 5% by state and local governments. Fifty percent of the costs were borne by workers and their family members.24
A 2015 report by OSHA—“Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job”—outlined how work-related injuries have devastating impacts on workers and their families. According to the report, workers who are injured on the job suffer great economic loss. Even after receiving workers’ compensation benefits, injured workers’ incomes are, on average, nearly $31,000 lower over 10 years than if they had not suffered an injury.25
One of the major contributors to the severe loss of income is the gross deficiencies and inequities in the workers’ compensation system, which continues to be governed by 50 different state laws. A 2015 multipart series by Pro Publica and National Public Radio exposed the failure of the workers’ compensation system to provide fair and timely compensation for workers hurt on the job.26 The series—“Insult to Injury: America’s Vanishing Worker Protections”—was based on a yearlong investigation, which found that over the previous decade there had been a systematic effort by insurers and employers to weaken workers’ compensation benefits for injured workers. Since 2003, legislators in 33 states have passed legislation reducing benefits or limiting eligibility. The benefits provided to workers vary widely. For example, the maximum compensation for loss of an eye is $261,525 in Pennsylvania, but only $27,280 in Alabama. In many states, employers have great control over medical decisions. Workers are not allowed to pick their own doctors, and employers can demand review by “independent medical examiners” picked by employers who can challenge medical determinations regarding the work-relatedness of the condition, the degree of disability and prescribed treatment. According to Pro Publica, all of these factors have contributed to the demolition of the workers’ compensation system and left injured workers and their families, and society at large, bearing the costs of their injuries.
9 Boden, L.I., and A. Ozonoff, “Capture-Recapture Estimates of Nonfatal Workplace Injuries and Illnesses,” Annals of Epidemiology, Vol. 18, No. 6, (2008), available at 10.1016/j.annepidem.2007.11.003.
10 Rosenman, K.D., A. Kalush, M.J. Reilly, et al., “How Much Work-Related Injury and Illness is Missed by the Current National Surveillance System?,” Journal of Occupational and Environmental Medicine, Vol. 48, No. 4, pp. 357–67, April 2006, available at 10.1097/01.jom.0000205864.81970.63.
11 Davis, L., K. Grattan, S. Tak, et al., “Use of Multiple Data Sources for Surveillance of Work-Related Amputations in Massachusetts, Comparisons with Official Estimates and Implications for National Surveillance,” American Journal of Industrial Medicine, Vol. 57, No. 10, (2014), available at 10.1002/ajim.22327.
12 Wuellner, S., and D. Bonauto, “Injury Classification Agreement in Linked Bureau of Labor Statistics and Workers’ Compensation Data,” American Journal of Industrial Medicine, Vol. 57, No. 10, (2014), available at 10.1002/ajim.22289.
13 Almberg, K.S., L.S. Friedman, D. Swedler and R.A. Cohen, “Mine Safety and Health Administration's Part 50 program does not fully capture chronic disease and injury in the Illinois mining industry,” American Journal of Industrial Medicine, Vol. 61, pp. 436–443, (2018), available at 10.1002/ajim.22826.
14 Mendeloff, J., and R. Burns, “States with low non‐fatal injury rates have high fatality rates and viceversa,” American Journal of Industrial Medicine, Vol. 56, pp. 509–519, available at 10.1002/ajim.22047 (2013).
15 Wiatrowski, W.J., “Examining the Completeness of Occupational Injury and Illness Data: An Update on Current Research,” Monthly Labor Review, June 2014, available at bls.gov/opub/mlr/2014/article/examining-the-completeness-of-occupational-injury-and-illness-data-anupdate- on-current-research.htm.
16 United States Government Accountability Office, “Enhancing OSHA’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data,” GAO-10-10, October 2009, available at gao.gov/products/GAO-10-10.
17Rogers, E., "The Survey of Occupational Injuries and Illnesses Respondent Follow-Up Survey," Monthly Labor Review, U.S. Bureau of Labor Statistics, May 2020, available at doi.org/10.21916/mlr.2020.9.
18 Bureau of Labor Statistics, Research on the Completeness of the Injury and Illness Counts from the Survey of Occupational Injuries and Illnesses, available at bls.gov/iif/undercount.htm.
19 Yu, E. and K. Monaco, “Overview of the Results of the Household Survey of Occupational Injuries and Illnesses Pilot and On-going BLS Activities,” U.S. Bureau of Labor Statistics, December 2020, available at bls.gov/iif/hsoii-update-12052020-final.pdf.
20 National Academies of Sciences, Engineering, and Medicine, A Smarter National Surveillance System for Occupational Safety and Health for the 21st Century, Washington, D.C.: The National Academies Press, (2018).
21 2019 Liberty Mutual Workplace Safety Index, available at business.libertymutualgroup.com/businessinsurance/ Documents/Services/DS200.pdf.
22 Liberty Mutual Research Institute for Safety, news release, April 16, 2002.
23 Leigh, J.P., “Economic Burden of Occupational Injury and Illness in the United States,” The Milbank Quarterly, Vol. 89, No. 4, (2011).
24 Leigh, J.P., and J. Marcin, “Workers’ Compensation Benefits and Shifting Costs for Occupational Injuries and Illnesses,” Journal of Occupational and Environmental Medicine, Vol. 54, No. 4, (2012), available at 10.1097/JOM.0b013e3182451e54.
25 U.S. Department of Labor, Occupational Safety and Health Administration, “Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job,” (2015), available at osha.gov/sites/default/files/inequality_michaels_june2015.pdf.
26 Pro Publica and National Public Radio, “Insult to Injury: America’s Vanishing Worker Protections,” March 2015, available at propublica.org/series/workers-compensation.
COVID-19 Pandemic and Worker Safety
The COVID-19 pandemic, caused by the SARS-CoV-2 virus, so far has resulted in more than 146 million cases and 3 million deaths, including more than 31 million cases and 567,000 fatalities in the United States. This is the first pandemic of this magnitude since the pandemic flu of 1918, which killed more than 675,000 people in the United States and an estimated 50 million worldwide.27
Working-age adults have been hit the hardest—essential workers who have had to share air with other people and who have been provided few or no protections. Many union members are among the hundreds of thousands of workers across the country lost to this contagious virus.28
COVID-19 exposures are preventable, as is noticeable in communities that have instituted strong precautionary measures. In workplaces, the implementation of exposure control prevention plans by employers saves lives. Swift public health intervention and workplace safety standards that require strong measures through these plans could have prevented many of these deaths. In this section, we will outline the response to the pandemic thus far, how our nation has become a country with one of the largest burdens of the disease that could have been prevented, and what must be done to protect working people.
For more information on the history of workplace exposures to infectious diseases, see the Infectious Disease section below.
The State of the COVID-19 Pandemic in the United States
The first outbreak of COVID-19 occurred in December 2019 in Wuhan, Hubei Province, China. Due to our global economy, international travel and inadequate pandemic preparedness, the virus quickly spread across the world; the first reported case in the United States occurred in late January 2020. Community transmission of the virus soon followed, and the first major outbreak in the United States occurred in the Seattle area in late February. By March 17, 2020, all 50 states had reported a case of COVID-19, and New York City had become an epicenter of infection. The virus has continued to spread through every state in waves, with major surges again in August and December–January, and another surge is expected imminently, as people return to workplaces without strong control measures in place to prevent exposures and before herd immunity is reached with vaccines, especially among those at greatest risk of COVID-19 exposures.
The first major workplace outbreaks largely affected front-line workers—health care workers, first responders and transit workers—those most likely to interact in close quarters with the public likely to be infected with the virus. In the Seattle area, one of the first workplace outbreaks was in a long-term care facility, where both residents and staff were infected, and many died. As the virus continued to spread throughout the country, it was clear that any workplace with the following conditions were at especially high risk of COVID-19 exposures:
• Indoor environments.
• Poorly ventilated spaces.
• Crowded conditions.
• Settings with individuals known to be infected (e.g., health care).
As the pandemic raged, the virus continued to infect inadequately protected workers and the public in settings where they shared the same air with other people for long durations. Because it is difficult or impossible to control one’s surroundings in the workplace, many worker advocates early on called for strong standards and employer plans instituting the hierarchy of controls to prevent exposures to the virus as the most effective forms of protection against the virus.
COVID-19 in the Workplace
There remains no comprehensive national surveillance system to collect case information by industry and occupation, and employer reporting of COVID-19 cases still is mandatory only in a few states with specific standards or orders. For the first few months of the pandemic, testing was extremely limited, so identifying confirmed cases in a timely manner was additionally complicated, but that no longer is the case. In the absence of a national system, unions stepped in early in the pandemic to gather information from members about their exposures, infections and employer responses.29 To minimize the role of the workplace and institute strong prevention measures, many employers have pushed a narrative through the media and policies that COVID-19 is community spread, rather than workplace spread, but it is absolutely clear that workplace spread has played the major role in U.S. COVID-19 outbreaks throughout the pandemic. The evidence of workplace outbreak and worker infection has grown significantly since the start of the pandemic, and recent evidence shows the workplace is a major setting responsible for the spread of COVID-19. The Centers for Medicare and Medicaid Services is the only federal agency with requirements for employers to report infection information. Since May 2020, it has published information weekly on known and suspected infections and deaths among nursing home staff and residents. Between May 24, 2020, and March 28, 2021, at least 563,575 cases of COVID-19 among nursing home staff were confirmed, with 193,919 suspected to be infected, 1,875 deaths and 170 reinfections. Throughout the pandemic, these nursing home data have been an early indicator of the trends about to take hold nationwide. The most recent nursing home data show an upward trend in cases. Recently there have been four consecutive weeks of rising staff infections—a 39% increase in infection for staff since mid-March, and a reinfection rate of more than 7% for staff and 12% for residents. Reinfections with variants has shown to be particularly concerning; cases have been documented recently in nursing facilities after vaccination in Illinois and Kentucky.30,31
The Centers for Disease Control and Prevention (CDC) publishes limited information on infections of health care personnel and correctional staff, but all data are voluntarily provided by states and appear to be a major undercount compared with other sources. Even though the CDC reported at least 458,134 health care personnel infected and 1,524 health care worker deaths as of April 4, 2021, an investigation by the Guardian and Kaiser Health News counted 3,607 health care worker deaths in the first year of the pandemic alone.32 This also is a clear undercount when compared with the nursing home data above. Because of the nonmandatory reporting, only 18% of data collected through the CDC identified if the case was a health care worker.33
According to the CDC data, there have been 87,815 cases and 143 deaths among correctional staff between March 31, 2020, and April 2, 2021. The nonprofit Food and Environment Reporting Network has reported 1,833 outbreaks in the meatpacking, food-processing and farming industries, resulting in at least 89,068 infections and 378 deaths between April 22, 2020, and April 5, 2021.
A recent working paper by the National Bureau of Economic Research shows 55% higher risks of infection among essential workers compared with nonessential workers, based on an in-depth analysis from a commercial insurance carrier.34 Even after excluding those in the health care and social assistance sectors, who are more likely to have intimate, prolonged contact with infected patients, the remaining essential workers were 21% more likely to become infected than nonessential workers. Another key finding of this work shows that dependents living with essential workers faced a 17% higher risk of infection than those living with nonessential workers, and that nonessential workers who live with essential workers have a 38% higher risk of testing positive. The researchers point out that their sample likely underestimates the risks faced by households of the many essential workers who have no insurance coverage, such as part-time grocery clerks, home health aides and others.
Results from the Massachusetts COVID-19 Community Impact Survey detail information on exposure risks and mitigation measures by industry, race, gender and other characteristics.35 Washington’s SHARP program details COVID-19 case rates, showing much higher rates of infection in certain industries.36 These outbreaks continue; the majority of the new cases and ongoing outbreaks in Michigan are in workplaces, as well in states across the country.37 These data tend to be better in states with standards and protections that require reporting.
Despite the massive toll of COVID-19 on working people and the critical role of workplace exposures, BLS currently does not have a plan for counting and reporting workplace COVID-19 fatalities.38
Health Disparities and Equity
Before the pandemic, as illustrated above, Latino and Black workers faced an increased risk of dying on the job. Latino, Black and immigrant workers have been and continue to be disproportionately impacted throughout the pandemic. Workers of color are disproportionately employed in occupations where large outbreaks have occurred, including meatpacking, food processing, agriculture and transit, and are especially vulnerable when raising job safety concerns. Workplace outbreaks not only severely affect the workers onsite, but increase the risk for their families and communities.
Two recent studies document the disproportionate impact of COVID-19 hospitalizations and emergency room visits on racial and ethnic minorities. Both studies cite occupational factors in essential jobs as one of the major risk factors, underscoring the need for enhanced measures to protect these and other workers from the virus. The studies also underscore the need for enhanced data collection on occupation and industry for individuals infected with, hospitalized or dying from SARS-CoV-2, in order to better assess risk and target interventions to these high-risk occupations and industries.39,40
Early in the pandemic, a Morbidity and Mortality Weekly Report examining counties with COVID-19 outbreaks found that 96.2% of the counties had a disproportionate percentage of COVID-19 cases in one or more underrepresented racial/ethnic groups. The largest number of people affected by population size were Hispanic/Latino persons, with 3.5 million persons living in the examined hotspot counties, followed by Black persons (2 million), American Indian/Alaska Native persons (61,000), Asian persons (36,000) and Native Hawaiian/other Pacific Islander persons (31,000).41
In the Guardian and Kaiser Health News investigation to count every health care worker death in the first year of the pandemic, “Lost on the Frontlines,” two-thirds of deceased health care workers for whom the project has data identified as people of color.42 Lower-paid workers who handled everyday patient care, including nurses, support staff and nursing home employees, were far more likely to die in the pandemic than physicians were.
There are many other studies documenting these disparities now that we are 16 months into COVID-19 spreading throughout the United States. However, racial and ethnic minority working-age adults also have been less likely to have access to a COVID-19 vaccine even though they have experienced the greatest burden of COVID-19 disease. According to CDC data, at least 63% of reported COVID-19 deaths are among those identifying as Black, Hispanic/Latino, Asian, American Indian/Alaska Native, Native Hawaiian/Pacific Islander or multiple races/other, while these groups up make up only 31% of those who have received the COVID-19 vaccine. Fifty percent of reported COVID-19 deaths are among working-age adults; 58% of the COVID-19 vaccine has been administered to working-age adults and 45% of the vaccine among working-age adults is among workers 50–64 years old.43,44
Variants and Vaccines
Several SARS-CoV-2 variants are spreading throughout the United States and the world, and continue to be responsible for many workplace and community outbreaks. These variants are more contagious and more fatal. Some of these variants spread more easily in children, which has not been the case with the original form of the virus.
Variants, or virus mutations, form and take hold in populations the more the virus is expected to spread. The longer this virus goes uncontrolled without prevention measures and vaccine uptake, the more increased risk of more dangerous variants forming and wreaking havoc in high-risk settings. Given that the United States is at least 16 months into the spread of the virus and significant outbreaks are continuing to occur nationally and globally, more variants are likely.
Most recently, Michigan is experiencing massive rates of hospitalization due to a variant that is able to infect and spread through children and is highly contagious, causing surges in hospitalizations, especially among younger people. More than half of the new cases and ongoing outbreaks in Michigan are in workplaces.45
A variant was responsible for a major Nebraska community outbreak that stemmed from a workplace—a daycare—and infected more than 100 people.46 Workplaces remain hotbeds for COVID-19 exposures because workers are sharing the same air space as other people without adequate protections.
The key to controlling the spread of COVID-19, ending the pandemic and infection and death in its wake, is to prevent exposures in high-risk group settings, like workplaces. This is especially true as reaching herd immunity through vaccines is complicated and can take a long time, while the risk of more dangerous and vaccine resistant variants continues to grow.
Several COVID-19 vaccines have received emergency use authorization by the U.S. Food and Drug Administration (FDA) and are being administered across the country. So far, these COVID-19 vaccines are highly effective at preventing serious infection, hospitalization and death, but reaching herd immunity is, and will continue to be, complicated.
On April 21, 2021, the Biden administration announced it reached its first goal of administering 200 million vaccine shots within the first 100 days in office. At the time this report was printed, only 30% of the U.S. population was fully vaccinated, and 44% of those vaccinated are 65 years and older—largely not essential workers at greatest risk of COVID-19 exposures. There continues to be access and education challenges, which will lead to a rollout that takes much longer for vaccinating the next segments of the population.
Recent polling still shows that roughly one-quarter of the U.S. population still will not take a vaccine that is made available to them. Estimates for reaching herd immunity vary between the end of summer 2021 and 2022.
As vaccine rollout continues, employers have used this to further shift away from their responsibilities to institute preventive control measures that effectively reduce COVID-19 exposures and infections. Recent evidence of breakthrough infections continues to stress the need for precautionary measures against COVID-19.47
COVID-19 Regulatory and Legislative Action
Under the Trump administration, there was no federal regulatory action by OSHA or MSHA, despite union petitions and legal actions filed by the AFL-CIO and affiliates. In the absence of federal action, some states stepped in to protect working people.
In late May, Washington adopted an emergency rule effective on May 26, 2020, and updated it most recently on Jan. 12, 2021. This emergency regulation is enforced by Washington OSHA and requires employers to implement COVID-19 safety plans and not operate in unsafe conditions.48
Virginia was the first state to issue an emergency temporary standard (ETS) for COVID-19 after a legal aid group representing agriculture and meatpacking workers petitioned the governor, who then issued an executive order directing the Virginia Department of Labor and Industry to present a draft standard to its Safety and Health Codes for amendments and a vote. The standard went into effect July 27, 2020.49 On Jan. 27, 2021, Virginia subsequently became the first state in the country to issue a permanent standard to protect workers from COVID-19.50
Early in the pandemic, Michigan issued a strong and comprehensive executive order that requires employers to develop COVID-19 preparedness and response plans, similar to an OSHA standard. On Oct. 2, the Michigan Supreme Court ruled the governor did not have the authority to issue the emergency declarations.51 Michigan’s state OSHA plan then issued an ETS that became effective Oct. 14, 2020, which the plan has been enforcing, and recently extended it through Oct. 14, 2021.52 Michigan’s OSHA plan is now working on a permanent COVID-19 standard.53
Oregon OSHA issued an ETS that went into effect in November 2020 and is working on a permanent COVID-19 standard.54 Also in November, California OSHA issued a COVID-19 ETS after a safety and health coalition group petitioned the Safety and Health Codes Board on May 20, 2020, and the board voted on the standard.55 Its ETS covers all workers not already covered by the 2009 Aerosol Transmissible Disease standard (8 CCR 5199), and it is the most protective workplace standard in the country, including requirements on using the hierarchy of controls to prevent airborne transmission of the virus, testing and ensuring infected workers are not in the workplace.
In April 2021, the New York state legislature passed the NY HERO Act, which would require the state to offer model prevention plans for airborne infectious diseases that private sector employers must implement. The bill is awaiting the governor’s signature. The enforcement mechanism within the state remains unclear, since the state OSHA plan in NY only covers public sector workplaces, but employers who do not comply may face civil penalties and civil action by employees.
In early August 2020, New Mexico Occupational Health and Safety Bureau filed an emergency amendment to its recordkeeping rule to require employers to disclose positive COVID-19 cases among their employees to the state within four hours of being notified of the test results.56 This emergency rule was renewed in December.57
The governors of Massachusetts and New Jersey issued executive orders to protect workers. These orders are not comprehensive, do not require employers to create a comprehensive prevention plan to protect workers from COVID-19 and the enforcement mechanisms are unclear. The New Jersey order contains worker training requirements. Several other states issued a variety of orders and passed legislation related to COVID-19 presumption of illness for workers’ compensation.
Business groups have pushed some states to pass liability shield laws, despite employers’ responsibility under the law to ensure a safe workplace. Meanwhile, other states, like Washington, have initiated efforts to address future workplace pandemic planning, requiring the reporting and notification to employees of outbreaks, presumption of illness and anti-retaliation measures in the case of future public health disasters. The health emergency standard has passed the legislature and is awaiting the governor’s signature.58
Efforts to Win National Workplace Safety Standards
The labor movement responded very early in the pandemic and called for strong, comprehensive worker protections. On March 6, 2020, the AFL-CIO and affiliated unions petitioned Secretary of Labor Eugene Scalia for an emergency temporary standard for infectious diseases to address the rapidly growing COVID-19 crisis.59 The petition went unanswered for months.
On May 18, 2020, the AFL-CIO filed an Emergency Petition for a Writ of Mandamus to require OSHA to issue an emergency temporary standard for COVID-19 in the U.S. Court of Appeals for the District of Columbia Circuit. OSHA defended its inaction, saying it had all the necessary tools to ensure employers are maintaining workplaces safe from COVID-19. The appeals court’s three-judge panel denied the AFL-CIO’s writ of mandamus on June 11, 2020, in a one-paragraph decision. Subsequently, on June 18, 2020, the AFL-CIO filed a petition for rehearing en banc, i.e., by the full court. On July 28, 2020, this petition was denied in a one-line decision.
On March 24, 2020, the United Mine Workers of America (UMWA) petitioned Assistant Secretary for Mine Safety and Health David Zatezalo for an emergency standard. Zatezalo denied the petition, stating that miners did not experience grave danger from COVID-19.
On June 15, 2020, the UMWA and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) filed an Emergency Petition for a Writ of Mandamus to require MSHA to issue an emergency temporary standard for COVID-19 in the U.S. Court of Appeals for the District of Columbia Circuit. The court denied the union’s writ of mandamus.
Legislation was introduced early in the pandemic to require OSHA to issue an ETS, after OSHA failed to act. The standalone bills (H.R. 6559, S. 3677) were incorporated into Democratic COVID-19 relief packages, including the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act), which passed the House on May 15, 2020. However, the ETS provisions did not make it into the final COVID-19 economic package that became law in December 2020.
On his second day in office, Jan. 21, 2021, President Biden signed an Executive Order on Protecting Worker Health and Safety. It directs OSHA to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021,” and directs MSHA to “consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as practicable.”60 On March 10, 2021, the AFL-CIO Executive Council renewed its call for strong worker protections, including an ETS.61
On April 26, 2021, the emergency rule was sent to the White House Office of Management and Budget for formal review, but as of the date this report went to press, an OSHA COVID-19 ETS has not been issued.62
The health care and meatpacking industries, in particular, have blocked efforts for laws that would require stronger prevention measures in workplaces, especially that prevent airborne transmission. Public Citizen recently obtained documents from the U.S. Department of Agriculture in response to a request under the Freedom of Information Act, which show how the meatpacking industry vehemently resisted the few attempts by the Trump administration to stop the spread of COVID-19 in meatpacking plants last spring.63 The American Hospital Association has blockaded efforts for an OSHA standard from the very beginning of the pandemic, and continues to do so.64,65
As many seem to view the vaccines as a reason to bring many people back into workplaces immediately, this remains dangerous without protective measures and standards in place that also prevent exposures. The most effective prevention measure continues to be keeping people from gathering together, such as in the workplace; and where that is not possible, such as in essential workplaces, ensuring effective measures to prevent people from being in crowded spaces and breathing the same air.
Federal Agency Guidance
The Trump administration relied on issuing guidelines throughout the pandemic, primarily through the Centers for Disease Control and Prevention. Guidelines are voluntary and have no legal force.
During the early stages of the pandemic, the CDC had used lessons learned from previous pandemics and recommended some precautionary protections, particularly for front-line workers. In the beginning stages of the pandemic, there was not overwhelming evidence that the virus spread through airborne transmission. However, due to airborne transmission of previous coronaviruses, the CDC suggested commonsense airborne precautions in high-risk workplaces, such as respirators for health care workers. In March 2020, the supply of disposable N95 respirators began to dwindle. The CDC chose to downgrade the recommendations for health care workers, only recommending respirators when performing aerosol-generating procedures. The downgrade in recommendations would be only the first of many, even after knowledge about the virus and disease grew.
Throughout the pandemic, the CDC has issued hundreds of various guideline documents based on topic and industry that change frequently with no public notification.66 In the Trump administration, instead of providing clear, evidence-based recommendations, the guidelines were plagued with political interference and business demands. Throughout the pandemic, CDC guidelines have been vague and do not create requirements to ensure employers are maintaining safe workplaces.67
In the fall, the CDC recognized, then subsequently removed, airborne transmission of SARSCoV- 2 from its website. On Sept. 18, 2020, the CDC posted the acknowledgment, stating, “Airborne viruses, including COVID-19, are among the most contagious and easily spread,” and that it was “thought to be the main way the virus spreads.”68 However, three days later, on Sept. 21, 2020, the CDC removed its recognition of airborne transmission, stating it was posted in error. The acknowledgment of airborne transmission of this virus was long-awaited from the CDC, as the scientific evidence had mounted and infectious disease experts largely were in consensus.69 The science is clear and has become abundant in the past year: SARS-CoV-2 can be spread by all three forms of transmission: contact, droplet and, primarily, small aerosol particles. The CDC still has not fully acknowledged that SARS-CoV-2 is spread primarily by small aerosol particles, which has prevented workers from being adequately protected.
The recognition of airborne transmission is essential for protecting workers from exposure, as it requires stronger workplace protections, such as reducing the number of people in a setting; spacing people far apart; reducing the time people spend in the same spaces; ensuring adequate ventilation; reorganizing the workplace, break times and schedules; and using certified respirators that filter small, aerosolized particles for workers in high-risk settings. Other modes of transmission have simpler control measures. Cleaning measures are useful to protect against “contact,” and some simple personal protective equipment, like face shields, face coverings and gowns, are useful to protect against “droplet” splashes.
We have not learned from our past. A 2006 review by the SARS Commission, established by the government of Ontario, Canada compared and contrasted Vancouver and Toronto hospitals with different infection control practices during the province’s SARS outbreak, which lasted February through June 2003, infecting 375 people and killing 44. The Vancouver hospital sought to protect workers through infection control practices using the precautionary principle and N95 respirators (to protect against aerosolized exposures), and had one severe case. The Toronto hospital, however, did not take a precautionary approach and relied largely on surgical masks for droplet exposures. This decision led to a major outbreak “that brought Toronto to its knees” with 45% of the cases being health care workers who, in many cases, brought the illness and death home to their families.70 This review also illustrates the hospital industry pushback on the use of N95 respirators.71 The same problems persist in the United States and could have been directly applied to the COVID-19 initial outbreaks. A recent article reviewing the science of SARS-CoV-2 transmission demonstrates the need for respiratory protection to protect against aerosol transmission of the virus.72
On Jan. 29, 2021, OSHA issued stronger COVID-19 guidance, which outlines critical measures for developing workplace exposure control plans to prevent COVID-19 exposures and eliminates arbitrary risk categories by industry.73 On March 10, 2021, MSHA released COVID-19 guidance for the first time in the pandemic.74 Both agency guidelines are centered around infection control plans and include important workplace practices such as the use of the hierarchy of controls, training, isolation of cases, recording and reporting COVID-19 infections and deaths, screening and testing, and anti-retaliation measures.
Personal Protective Equipment Issues
Early in the pandemic, workers faced a severe shortage of respirators and other personal protective equipment (PPE) necessary to keep them protected from the airborne virus. This shortage not only resulted in a lack of protections, but led to dangerous employer practices to conserve and reuse disposable PPE, and threats and retaliation against workers bringing in their own PPE when employers were not providing any—as well as federal agency guidance and emergency use authorizations (EUAs) that permitted these practices under certain conditions. Some of these guidelines and EUAs have been revised or revoked after union and external pressure to investigate the safety of these methods.
The FDA and CDC have begun a phased approach to eliminating these crisis policies, based on supply.75,76 The CDC’s updated guidelines optimize respirator supplies, given the expanded supply of respiratory protection. CDC guidelines no longer provide information for decontamination combined with respirator reuse. The FDA has written to health care providers urging them to return to conventional care practices; however, it still has not withdrawn its EUAs allowing respirator decontamination. To date, OSHA has not changed any of its respirator crisis policies.
Early in the pandemic, President Trump had the authority to invoke the Defense Production Act to quickly increase the production and supply and improve allocation of PPE, testing supplies and other equipment, but refused to use the full force of this authority to outline a plan for U.S. manufacturers to produce respirators and other critical PPE workers needed during the pandemic. Sixteen months into the pandemic, PPE supply has slowly increased on its own, but is still low. On Oct. 8, 2020, the AFL-CIO, eight unions and several environmental organizations filed a lawsuit to increase PPE supply and transparency from the federal government.77 This case is still pending.
COVID-19 Enforcement Activity
Under the Trump administration, federal OSHA took the position that it had all the tools needed to ensure employers were maintaining safe working conditions during the pandemic. However, at a minimum the administration completely failed to act using those tools. Under President Trump, the agency investigated few complaints and issued fewer citations. Through Feb. 28, 2021, federal OSHA received 1,644 formal complaints, 12,199 nonformal complaints and 2,074 referrals. Of these, it has opened investigations for only 425 of the complaints and 165 of the referrals. It also has opened 949 fatality/catastrophe investigations, where a worker has died from COVID-19. Of the complaints, more than 3,000 were from health care workers, and more than 1,600 were from retail workers.
As of Feb. 28, 2021, federal OSHA issued COVID-19 related citations to 346 employers, resulting in a total current penalty of $4,249,987 and $3,751 average penalty per violation. Federal OSHA also issued 189 hazard alert letters, which do not result in a violation. The majority of serious violations were violations of the respiratory protection standard, 1910.134. The majority of other-than-serious violations were related to recordkeeping. Federal OSHA has only issued five general duty clause citations. Four of the violations occurred in the meatpacking industry and were issued to JBS Foods Inc./Swift Beef Company, Smithfield Packaged Meats Corp., Elkhorn Valley Packing and JBS Green Bay Inc. The other general duty clause violation was in other transportation equipment manufacturing and was issued to Peterson Manufacturing/Maxi-Seal Harness Systems. The total initial penalties for these five violations were $66,423.
Some states with state plan OSHA programs have taken a more aggressive enforcement approach than federal OSHA in utilizing their emergency standards and protections. Overall, state OSHA programs cited 1,199 employers, resulting in total current penalties of $11,791,141 and $4,870 average penalty per violation. This included 314 willful violations, largely in Washington, with a few in California, New Mexico and Virginia. In comparison, federal OSHA issued zero willful violations until April 2021. State programs also issued nine repeat violations that resulted in an average penalty of $8,159, largely due to hazard communication or injury and illness prevention program violations. This compares with federal OSHA, which issued one repeat violation with no penalty for failure to fit test respirators. Some states also provide their enforcement information publicly, including California and Michigan.78,79 This is important, as public releases can act as a deterrent for employers, lead to compliance and is a strategic way to utilize OSHA’s limited resources.80 For example, Nevada issued an enforcement directive in July 2020.81
The Biden administration’s OSHA issued a revised Interim Enforcement Directive and National Emphasis Program for COVID-19; both went into effect March 12, 2021.82,83 In April 2021, OSHA cited a tax office in Massachusetts for failing to protect workers because the business allegedly prohibited employees and customers from wearing face coverings despite a statewide order, required employees to work within six feet of one other and customers for multiple hours while not wearing face coverings, and failed to implement ventilation and other critical prevention measures. This is OSHA’s largest COVID-19 fine ($136,532) and first willful violation to date.84 OSHA also cited the Albany (New York) Medical Center for violations of providing respirators and adhering to its respiratory protection program requirements.85 Complaints recently have been filed against another poultry plant in Oklahoma.86
29 Health Professionals and Allied Employees, American Federation of Teachers, “Exposed and At-Risk,” July 2020, available at hpae.org/wp-content/uploads/2020/07/HPAE-COVID-19-White-Paper_PRESS.pdf; National Nurses United, NNU COVID-19 Survey Results, July 27, 2020, available at nationalnursesunited.org/covid-19-survey; and Amalgamated Transit Union, “WE DON’T COME TO WORK TO DIE”: A Survey of Transit Unions on the Frontlines of COVID-19, May 2020, available at atu.org/atupdfs/ covid19/SafeServiceSurvey.pdf?link_id=1&can_id=9ae9113d0771f5150ce4fe11c4994541&source=e mail-atu-endorses-bipartisan-smart-fund&email_referrer=email_803882&email_subject=64-of-transitagencies- unprepared-for-covid-19-transit-union-survey-finds.
30 Teran R.A., K.A. Walblay, E.L. Shane, et al., “Postvaccination SARS-CoV-2 Infections Among Skilled Nursing Facility Residents and Staff Members — Chicago, Illinois, December 2020–March 2021,” Morbidity and Mortality Weekly Report, published electronically April 21, 2021. DOI: http://dx.doi.org/10.15585/mmwr.mm7017e1.
31 Cavanaugh A.M., S. Fortier, P. Lewis, et al., “COVID-19 Outbreak Associated with a SARS-CoV-2 R.1 Lineage Variant in a Skilled Nursing Facility After Vaccination Program — Kentucky, March 2021,” Morbidity and Mortality Weekly Report, published electronically April 21, 2021. DOI: http://dx.doi.org/10.15585/mmwr.mm7017e2.
32See www.theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19- coronavirus-us-healthcare-workers-deaths-database.
34 National Bureau for Economic Research, “Measuring the Virus Risk of Essential Workers and Dependents,” Issue No. 3, March 2021, available at nber.org/digest-2021-03, and National Bureau for Economic Research, “The Impact of the Non-essential Business Closure Policy on Covid-19 Infection Rates,” Working Paper, January 2021, available at nber.org/papers/w28374.
36 See https://lni.wa.gov/safety-health/safetyresearch/ files/2021/103_06_2021_COVID_Industry_Report.pdf.
37 See michigan.gov/coronavirus/0,9753,7-406-98163_98173_102057---,00.html.
38See bls.gov/covid19/effects-of-covid-19-on-workplace-injuries-and-illnesses-compensation-andoccupational- requirements.htm.
39 Romano S.D., A.J. Blackstock, E.V. Taylor, et al., “Trends in Racial and Ethnic Disparities in COVID-19 Hospitalizations, by Region — United States, March–December 2020,” Morbidity and Mortality Weekly Report, 2021;70:560–565. DOI: http://dx.doi.org/10.15585/mmwr.mm7015e2.
40 Smith A.R., J. DeVies, E. Caruso, et al., “Emergency Department Visits for COVID-19 by Race and Ethnicity — 13 States, October–December 2020,” Morbidity and Mortality Weekly Report, 2021;70:566- 569. DOI: http://dx.doi.org/10.15585/mmwr.mm7015e3.
41 Moore, J.T., J.N. Ricaldi, C.E. Rose, et al., “Disparities in Incidence of COVID-19 Among Underrepresented Racial/Ethnic Groups in Counties Identified as Hotspots During June 5–18, 2020 — 22 States, February–June 2020,” Morbidity and Mortality Weekly Report, 2020; 69:1122–1126. DOI: http://dx.doi.org/10.15585/mmwr.mm6933e1.
42 See theguardian.com/us-news/ng-interactive/2020/aug/11/lost-on-the-frontline-covid-19-coronavirus-ushealthcare- workers-deaths-database.
43 Centers for Disease Control and Prevention, COVID-19 Response, COVID-19 Case Surveillance Public Data Access, Summary, and Limitations (version date: March 31, 2021). (Accessed April 22, 2021.)
44Centers for Disease Control and Prevention. COVID Data Tracker, Demographic Characteristics of People Receiving COVID-19 Vaccinations in the United States. Updated Daily. (Accessed April 22, 2021.) See covid.cdc.gov/covid-data-tracker/#vaccination-demographic.
45 See michigan.gov/coronavirus/0,9753,7-406-98163_98173_102057---,00.html.
46 See 1011now.com/2021/03/26/100-cases-of-uk-covid-19-variant-linked-to-omaha-daycare/.
47 Cavanaugh A.M., S. Fortier, P. Lewis, et al., “COVID-19 Outbreak Associated with a SARS-CoV-2 R.1 Lineage Variant in a Skilled Nursing Facility After Vaccination Program — Kentucky, March 2021,” Morbidity and Mortality Weekly Report, published electronically April 21, 2021. DOI: http://dx.doi.org/10.15585/mmwr.mm7017e2.
48 See lni.wa.gov/rulemaking-activity/AO21-02/2102CR103EAdoption.pdf; See also lni.wa.gov/safetyhealth/ safety-topics/topics/coronavirus - requirements-and-policies; See also lni.wa.gov/formspublications/ f414-169-000.pdf.
49 See doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FORPUBLIC- DISTRIBUTION-FINAL-7.17.2020.pdf. 50See doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-Prevention-ofthe- Virus-That-Causes-COVID-19-16-VAC25-220-1.27.2021.pdf.
52 See michigan.gov/documents/leo/Final_MIOSHA_Rules_705164_7.pdf.
53 See michigan.gov/leo/0,5863,7-336-76741-555024--,00.html.
54 See osha.oregon.gov/rules/advisory/infectiousdisease/Pages/default.aspx.
55 See dir.ca.gov/oshsb/petition-583.html.
56 See env.nm.gov/wp-content/uploads/2020/03/Emergency-Amendment-to-18.104.22.168-final.pdf.
57 See env.nm.gov/wp-content/uploads/2020/12/11.5.1-emergency-amendment-3.pdf.
58 See http://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bill%20Reports/Senate/5115- S.E%20SBR%20FBR%2021.pdf?q=20210415090654.
59 AFL-CIO petition to the U.S. Department of Labor (DOL) with 24 national and international unions, available at aflcio.org/statements/petition-secretary-scalia-osha-emergency-temporary-standardinfectious-disease. National Nurses United (NNU) also sent a similar petition to DOL on March 5, 2020.
60 See whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-workerhealth- and-safety/.
61 See https://aflcio.org/about/leadership/statements/protecting-workers-covid-19.
62 See reginfo.gov/public/do/eoReviewSearch.
63 See citizen.org/news/usda-meatpacking-industry-collaborated-to-undermine-covid-19-response-foiadocs-show/. 64 See aha.org/action-alert/2020-03-12-action-alert-urge-house-leadership-withdraw-provisioncoronavirus-funding. 65 See aha.org/fact-sheets/2020-11-09-fact-sheet-osha-emergency-temporary-standard-proposals.
66 See cdc.gov/coronavirus/2019-ncov/communication/guidance-list.html?Sort=Date%3A%3Adesc.
67See osha.gov/Publications/OSHA3990.pdf; See also osha.gov/Publications/OSHA4045.pdf.
68 See amp.cnn.com/cnn/2020/09/20/health/cdc-coronavirus-airborne-transmission/index.html.
69 See academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa939/5867798.
70 See archives.gov.on.ca/en/e_records/sars/report/.
71 See cidrap.umn.edu/news-perspective/2007/01/ontario-sars-report-cites-health-system-failings.
72 See https://khn.org/news/article/year-into-pandemic-feds-design-new-mask-guidelines-to-better-protectmore- workers/.
73 See osha.gov/coronavirus/safework.
75 See fda.gov/medical-devices/letters-health-care-providers/fda-recommends-transition-usedecontaminated- disposable-respirators-letter-health-care-personnel-and.
76 See cdc.gov/coronavirus/2019-ncov/hcp/respirators-strategy/index.html.
77 See https://biologicaldiversity.org/w/news/press-releases/lawsuit-targets-feds-failure-to-protectfrontline- workers-from-covid-19-2020-10-08/.
78 See dir.ca.gov/dosh/COVID19citations.html.
79 See michigan.gov/leo/0,5863,7-336-100207_105974---,00.html?page=1&limit=10&filterCategories= &searchQuery=.
80 Johnson, M.S., "Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws." American Economic Review, 110 (6): 1866–1904, (2020).
81See http://dir.nv.gov/uploadedFiles/dirnvgov/content/home/features/OSHA%20Enforcement%20Process%20L etter%2007-23-20.pdf.
82See osha.gov/memos/2021-03-12/updated-interim-enforcement-response-plan-coronavirus-disease- 2019-covid-19.
84 See osha.gov/news/newsreleases/region1/04132021.
85 See news10.com/news/albany-county/albany-med-hit-with-osha-violations/.
86 See meatpoultry.com/articles/24795-seaboard-pushes-back-on-new-osha-complaint-filed-by-ufcw.
OSHA Enforcement and Coverage
Enforcement is a cornerstone of the Occupational Safety and Health Act and always has been a major part of the OSHA program. However, different administrations have placed different levels of emphasis on enforcement. In general, Democratic administrations have favored strong enforcement, supplemented by compliance assistance and voluntary programs, while Republican administrations have placed a greater emphasis on compliance assistance, backed up by enforcement. But all administrations face deficiencies and weaknesses in OSHA’s statutory enforcement authority, and significant resource constraints that have greatly limited the agency’s ability to meet its responsibilities.
For the entire four-year term of the Trump administration, OSHA did not have a confirmed head of the agency. Enforcement did not change significantly for the first two years; however, enforcement policy changes in 2019 changed the focus of OSHA inspections to be more about quantity rather than emphasizing significant inspections. The number of onboard OSHA inspectors declined significantly due to President Trump’s federal hiring freeze and the failure to fill vacant positions. As a result, the overall level of enforcement activity, particularly involving more complicated and time-intensive cases, declined.
Since taking office, the Biden administration’s OSHA has responded to several major workplace safety incidents. In late January, a liquid nitrogen leak at a Georgia poultry plant killed at least six people, sent a dozen to the hospital and forced the plant to evacuate; many of these workers were Latino and immigrants.87 In Florida, an investigation into a lead smelter is expected to be significant as the employer is allowing toxic occupational lead exposures; many of these workers are Black or immigrants.88
The OSH Act excluded many workers from coverage, including workers covered by other safety and health laws, and state and local public employees in states without a state OSHA plan. Over the years, there have been efforts to expand coverage. But today millions of workers—many state and local public employees—still lack OSHA coverage and are at much greater risk of being injured on the job.
Compliance Staffing and Inspections
The number of federal OSHA compliance inspectors declined significantly during the Trump administration, and reached its lowest level since the early 1970s (when the agency opened). As of December 2020, federal OSHA had 774 inspectors (excluding supervisors), up from 746 in 2019—the lowest in the history of the agency—but still down from 815 in 2016. This reduction is the result of attrition and a federal hiring freeze imposed during the first year of the Trump administration, which since has been lifted for OSHA.
State OSHA plans have 1,024 inspectors, similar to the 1,024 inspectors in 2018, but that number still is down from 1,063 inspectors in 2017. There are currently a total of 1,798 federal and state OSHA inspectors responsible for enforcing the safety and health law at more than 10.1 million workplaces, compared with 1,767 inspectors in 2018 and 1,815 inspectors in 2017.89
In FY 2020, federal OSHA inspectors conducted 21,674 inspections, and the state OSHA agencies combined conducted 32,062 inspections. This was a significant decrease from past years due to reduced enforcement activity during the COVID-19 pandemic; a 35% reduction for federal OSHA and a 24% reduction for state OSHA agencies.
For the first time, inspection data in federal agencies was requested and provided by federal OSHA. In FY2020, federal OSHA conducted 502 inspections in federal agencies, including 269 inspections at the Department of Defense, 132 at the Department of Interior, 107 at the Veterans Administration and 92 at the Department of Agriculture.
The overall number of federal OSHA inspections remained relatively constant or somewhat increased during the Trump administration, but the agency conducted far fewer inspections involving significant cases or hazards that require more intensive, time-consuming inspections. From FY 2016 to FY 2019, the number of inspections for significant cases declined from 131 to 100 (a 24% decline); the number of inspections for ergonomic hazards declined 55%, from 69 to 31; the number of inspections for workplace violence declined 29%, from 49 to 35; the number of inspections for process safety management declined 26%, from 234 to 172; and the number of inspections for combustible dust declined 24%, from 491 to 372.
The decline in enforcement activity involving significant and complicated cases can be seen in the data from OSHA’s Enforcement Weighting System (EWS), a protocol implemented under the Obama administration that gives greater weight to more time-intensive inspections than to shorter-duration routine inspections. In FY 2019, OSHA reported 42,825 enforcement units (EUs) for inspections and investigations, compared with 42,900 EUs in FY 2016.
On Sept. 30, 2019, OSHA changed its EWS to the OSHA Weighting System (OWS), for enforcement data beginning FY 2020.90 Both systems assign different weights to different types of inspections performed by OSHA compliance safety and health officers, but the OWS downgrades complex inspections with significant importance and impact, and increases the weight of quick inspections related to four fatal hazards—falls, caught in, struck by and electrical hazards. The new system masks the significant decrease in these inspections during the Trump administration. In FY 2020, OSHA reported 43,217 EUs for inspections and investigations, but this cannot be compared with the EWS EUs. Additionally, the COVID-19 pandemic has made non-COVID-19 FY 2020 enforcement data precarious and difficult to compare.
Federal OSHA’s ability to provide protection to workers has greatly diminished over the years. When the AFL-CIO issued its first “Death on the Job: The Toll of Neglect” report in 1992, federal OSHA could inspect workplaces under its jurisdiction once every 84 years, compared with once every 253 years under current staffing and inspection levels; however, OSHA was not able to conduct many inspections across the board in 2020 because of the COVID-19 pandemic. In 2019, pre-pandemic, this figure was 162 years. The current level of federal and state OSHA inspectors provides one inspector for every 82,881 workers. This compares with the benchmark of one labor inspector for every 10,000 workers recommended by the International Labor Organization for industrialized countries.91 In 20 states, the ratio of inspectors to employees is greater than one per 100,000 workers, with Florida having the highest ratio at one inspector per 164,520 workers.
Since the passage of the OSH Act, the number of workplaces and number of workers under OSHA’s jurisdiction has nearly doubled, but there are fewer numbers of OSHA staff and OSHA inspectors. In 1975, federal OSHA had a total of 2,435 staff (inspectors and all other OSHA staff) and 1,102 compliance staff (including supervisors) responsible for the safety and health of 67.8 million workers at more than 3.9 million establishments. In FY 2021, there are 1,896 federal OSHA staff responsible for the safety and health of 147.8 million workers at more than 10.2 million workplaces. The number of workers in FY 2020 was more than a 6% decline from the previous year due to the COVID-19 pandemic.
At the peak of federal OSHA staffing in 1980, there were 2,951 total staff and 1,469 federal OSHA inspectors (including supervisors). The ratio of OSHA inspectors per 1 million workers was 14.8. But now, there are only 901 federal OSHA inspectors (including supervisors), or 6.1 inspectors per 1 million workers.
Violations and Penalties
Penalties for OSHA violations have always been relatively low, due to statutory limitations and enforcement policies that prioritize the settlement of cases in order to achieve quicker abatement of hazards, rather than imposing the maximum fines.
In recent years, administrative and statutory changes have resulted in an increase in OSHA penalties. A revised penalty policy implemented during the Obama administration in 2010 resulted in a doubling of fines for serious violations. Passage of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which extended the coverage of the Inflation Adjustment Act to OSHA, further increased penalties for OSHA violations. Under the 2015 law, OSHA was authorized to raise maximum penalties by approximately 80%, the amount of inflation since the last time OSHA penalties were raised in 1990, and to regularly update penalties to account for future inflation.
This statutory increase in federal OSHA penalties took effect Aug. 1, 2016. The latest adjustment, effective Jan. 15, 2021, increased the maximum penalty for serious violations to $13,653, and for willful and repeat violations to $136,532.92 State plans also are required to raise their statutory maximum penalties in order to be as effective as the federal OSHA program, but to date, not all states have complied.
In FY 2020, the average penalty for a serious violation for federal OSHA was $3,923, compared with an average penalty of $3,717 for serious violations in FY 2019. In the state OSHA plans in FY 2020, the average penalty for a serious violation remained lower, at $2,137; in FY 2019, it was $2,032.
The number of willful violations cited by federal OSHA in FY 2020 was 385, an increase from FY 2019 and FY 2018 that was unrelated to COVID-19 violations but still far lower than the 524 willful violations issued during FY 2016, the last full year of the Obama administration. The average penalty per willful violation was $70,797 in FY 2020, compared with $59,373 in FY 2019 and $61,900 in FY 2018. The average penalty per repeat violation was $15,340 in FY 2020, compared with $14,109 in FY 2019. In states with state-run OSHA plans, in FY 2020, there were 149 willful violations issued, with an average penalty of $44,248 per violation, and 1,927 repeat violations issued, with an average penalty of $5,505 per violation.
In FY 2020, federal OSHA issued 847 violations to federal agencies, including four willful violations and 69 repeat violations. Federal OSHA does not issue monetary penalties as a result of violations to federal agencies.
For FY 2020, federal OSHA reported that the agency brought 89 “significant” enforcement cases.93 This continues to be fewer than FY 2016 (131), but is more than FY 2019 (84), FY 2018 (65) and FY 2017 (53).94 It is unclear how significant enforcement cases may have been impacted by the COVID-19 pandemic and reduction in enforcement activity.
According to OSHA inspection data, the average total penalty in a fatality case in FY 2020 was just $14,459 for federal and state OSHA plans combined. However, averages can distort the real picture of fatality penalties in situations in which large cases with very high penalties raise the averages substantially. Using median penalties that capture the point where half of the penalties are below and half the penalties are above the median provides a more accurate picture of the typical penalties in cases involving worker deaths.
The median current penalty per fatality investigation conducted in FY 2020 was $12,144 for federal OSHA and the median current penalty was $6,899 for the state OSHA plans combined, according to enforcement data provided by OSHA in April 2021. This compares with the respective penalties in FY 2019: $9,282 for federal OSHA and $4,050 for the state OSHA plans. These data include enforcement cases that still are under contest, and some cases that still are open. Increased penalties in FY 2020 are likely a reflection of the COVID-19 pandemic: OSHA conducted significantly fewer total inspections throughout the year and the Trump administration issued significantly fewer citations than OSHA typically issues in a fiscal year. The pandemic created a smaller pool of data in total and inspections were focused on COVID-19, rather than the many safety and other hazards OSHA typically cites throughout the year.
Enforcement Initiatives and Policies
Throughout the Trump administration, and in the four-year absence of a confirmed assistant secretary, there was only one major overhaul or reorientation of OSHA’s enforcement program. A number of enforcement programs and initiatives implemented by the Obama administration continued. However, key policies and practices implemented by the Obama administration to enhance worker rights and improve transparency and disclosure were rolled back.
In response to calls from the business community, the Trump administration in April 2017 withdrew the Obama administration’s policy that provided for nonunion workers to designate a walkaround representative to participate on their behalf in OSHA worksite inspections. The policy, set forth in a 2013 letter of interpretation, clarified that under OSHA regulations, a collective bargaining representative or another individual designated by the employees, if the inspector determined the individual would aid the inspection, could serve as the walkaround representative.95 This provided for nonunion workers to designate a union or worker center as their representative for the purpose of participating in the OSHA inspection. Business groups strongly objected to and challenged this policy. In response, the Trump administration withdrew this letter of interpretation, stating it no longer represented OSHA policy.
The Trump administration also backtracked on Obama administration initiatives to use public disclosure of information to highlight serious safety and health problems. In 2010, OSHA started posting information on every fatality report it received on the home page of its website, to educate and inform the public about the high toll of work-related deaths and the need to prevent them. The information included the name of the worker, the circumstances surrounding the death and the employer. In August 2017, the Trump administration stopped posting these reports. OSHA reported only fatalities it investigated and, citing privacy concerns, would not release the name of the deceased worker. Worker fatality information no longer was posted on the home page of OSHA’s website, which instead displayed initiatives OSHA was taking to cooperate with employers. Families of workers killed on the job protested this change in policy, which diminished attention to these workplace deaths.
The Obama administration also expanded the use of press releases on significant enforcement cases to focus public attention on employers with serious, willful or repeated violations of the law. OSHA had always issued press releases on important enforcement cases, but under the Obama administration, it was OSHA policy to issue a press release on all enforcement cases with total proposed penalties of greater than $40,000, and for local OSHA officials to engage in active outreach to the press. A recent study found that one OSHA press release was the equivalent of 210 inspections, an essential compliance assistance tool given limited agency resources.96 The business community strenuously objected to the issuance of these press releases, and when the Trump administration took office, the issuance of OSHA press releases on enforcement cases was suspended. Several months later, from public pressure, the agency again issued some press releases for some major enforcement cases, but there no longer was a policy or practice to issue press releases on all significant enforcement cases. Press releases have resumed under the Biden administration.
Other Obama administration programs and policies to address high-hazard employers and industries and to respond to changes in the workforce and employment relationships have continued. These include the Severe Violator Enforcement Program, launched in 2010, to focus on and provide enhanced oversight of the most persistent and egregious violators; the Temporary Worker Initiative (TWI) to help prevent injuries and illnesses among temporary workers by holding both staffing agencies and host employers jointly responsible; and the Severe Injury Reporting and Investigation Program.
According to OSHA, 77 new cases were added to the log of the Severe Violator Enforcement Program in FY 2020. As of the end of FY 2020, more than 690 employers remained in the severe violator program subject to OSHA enforcement.97
OSHA has continued to conduct the Temporary Worker Initiative to help prevent injuries and illnesses among temporary workers who are employed by staffing agencies but who work for different host employers. However, the number of inspections conducted under the TWI have declined significantly. Under OSHA’s temporary worker policy, both host employers and staffing agencies may be held jointly responsible for complying with safety and health rules.
In conjunction with these special emphasis programs under the Obama administration, OSHA stepped up its enforcement efforts on ergonomic hazards. In FY 2016, there were 13 serious violations for ergonomic hazards under 5(a)(1), six of which were in the poultry industry. In addition, in FY 2016 OSHA issued 96 Hazard Alert Letters (HALs) for ergonomic hazards. These letters are issued in cases where OSHA identifies serious ergonomic hazards, but is not able to meet the legal burden for issuing a general duty citation. Under the Trump administration, enforcement on ergonomics hazards declined significantly. In FY 2020, OSHA issued 13 Hazard Alert Letters but no 5(a)(1) citations. This was a decline from the 31 HALs in FY 2019, although there also were no 5(a)(1) citations, and these numbers may have been impacted by the COVID- 19 pandemic.
Throughout OSHA’s history, criminal enforcement under the Occupational Safety and Health Act has been rare. According to information provided by the Department of Labor, since the passage of the act in 1970, only 110 cases have been referred for prosecution under the act, with defendants serving a total of at least 112 months in jail. During this time, there were approximately 420,000 workplace fatalities, according to National Safety Council and Bureau of Labor Statistics data, about 20% to 30% of which were investigated by federal OSHA.98,99
By comparison, the Environmental Protection Agency reported in FY 2020 that there were 247 criminal enforcement cases initiated under federal environmental laws—and in 89% of the criminal cases charged, an individual defendant was prosecuted, and those prosecutions generated a total 94% conviction rate. This included 146 criminal cases after March 2020.100 The aggressive use of criminal penalties for enforcement of environmental laws, and the real potential for jail time for corporate officials, serve as a powerful deterrent.
The criminal penalty provisions of the OSH Act are woefully inadequate. Criminal enforcement is limited to those cases in which a willful violation results in a worker’s death, or where false statements in required reporting are made. The maximum penalty is six months in jail, making these cases misdemeanors. Criminal penalties are not available in cases where workers are endangered or seriously injured, but no death occurs. This is in contrast to federal environmental laws, where criminal penalties apply in cases where there is “knowing endangerment,” and the law makes such violations felonies. Due to the weak criminal penalties under the OSH Act, the Department of Justice prosecutes few cases under the statute. Instead, in some instances DOJ will prosecute OSHA cases under other federal statutes with stronger criminal provisions if those laws also have been violated.
In response to the OSH Act’s severe limitations, over the years there have been a number of initiatives to expand criminal enforcement for safety and health hazards by utilizing other statutes for prosecution. These include the DOJ Worker Endangerment Initiative, launched in 2005 and expanded in 2016, that focuses on companies that put workers in danger while violating environmental laws, and prosecutes such employers using the much tougher criminal provisions of environmental statutes.101,102,103 Under this initiative, DOJ has significantly enhanced its criminal prosecutions for worker safety and health, successfully bringing cases that have resulted in convictions and significant jail time for defendants.104
During the Obama administration, the Department of Labor stepped up criminal enforcement efforts, referring more cases for criminal prosecution to the DOJ and U.S. attorneys. In addition, DOL expanded assistance to local prosecutors in the investigation and prosecution of cases involving worker deaths and injuries. The Trump administration had continued this enhanced criminal enforcement activity its first two years, and former Secretary of Labor Alex Acosta committed to pursuing criminal sanctions where appropriate. In FY 2019, DOL referred four cases for criminal prosecution, compared with 11 cases in FY 2018 and 19 cases in FY 2017.105 Scalia, who started in September 2019, did not believe in a strong enforcement approach, as evidenced by his response during this pandemic. The impact of criminal enforcement under his watch will be reflected in FY 2020 data that were not available at the time of this report.
While criminal enforcement of job safety violations at the federal level remains quite limited, in a number of states and localities, prosecutors are pursuing criminal charges against employers and individuals in cases involving job deaths and injuries. In Philadelphia, the district attorney successfully prosecuted the general contractor and crane operator for deaths of six individuals in the 2013 Salvation Army building collapse, winning convictions for involuntary manslaughter and jail time. In New York City, the Manhattan district attorney won a manslaughter conviction against the general contractor, Harco Construction, for the 2015 trenching death of a young undocumented immigrant construction worker. The foreman for the excavation company, Sky Materials, was convicted of criminally negligent homicide and reckless endangerment, and sentenced to one to three years in jail. In both of these cases, unions and local safety and health activists worked with prosecutors to provide assistance and to educate the community about the job safety crimes.
Voluntary programs have always been part of OSHA’s programs, but the emphasis placed on voluntary initiatives has varied under different administrations. Under the Obama administration, strong enforcement was the priority, with voluntary programs supplementing enforcement efforts. The Trump administration placed a greater emphasis on voluntary programs, while maintaining OSHA’s enforcement program. It is still too early in the Biden administration to see the effects of OSHA’s voluntary programs.
The major voluntary programs conducted by OSHA are the Voluntary Protection Program, a program that recognizes companies with a high level of safety and health performance, and the Alliance program, under which OSHA partners with trade associations, professional groups and others to carry out safety and health initiatives targeted at particular industries or hazards. Alliances can be made at the national, regional or state level, with more than 1,000 alliances having been created. To date, federal OSHA has 38 national alliances. In the midst of the pandemic, where meatpacking employers were not instituting key measures to keep workers safe, on June 28, 2020, federal OSHA created an alliance with the North American Meat Institute, a meatpacking industry trade association.106
OSHA law still does not cover 8.1 million state and local government employees in 24 states and the District of Columbia, although these workers encounter the same hazards as private sector workers, and in many states have a higher rate of injury than private sector counterparts.107,108 Similarly, millions who work in the transportation and agriculture industries and at Department of Energy contract facilities lack full protection under the OSH Act. These workers theoretically are covered by other laws, which in practice have failed to provide equivalent protection.
In 2013, OSHA coverage was extended to flight attendants when the Federal Aviation Administration rescinded a longstanding policy and ceded jurisdiction to OSHA on key safety and health issues, in response to the FAA Modernization and Reform Act of 2012 (PL 112-95). This policy action was the culmination of decades of effort by the flight attendant unions to secure OSHA protections. Specifically, the FAA issued a policy that extended OSHA regulations and jurisdiction on hazard communication, bloodborne pathogens, hearing conservation, recordkeeping, and access to employee exposure and medical records for cabin crews.109
The COVID-19 pandemic continues to highlight the consequences of inadequate OSHA coverage in workplaces across the country. Even with protections, enforcement and adequate resources, OSHA could not reach many workplaces to ensure workers are protected.
One of OSHA’s key responsibilities is to enforce the anti-retaliation provisions under section 11(c) of the Occupational Safety and Health Act. In addition, OSHA has the responsibility to enforce the whistleblower provisions of 23 other statutes, ranging from the Federal Rail Safety Act to the Sarbanes-Oxley finance law. Many of these statutes deal with safety and health matters, but others do not.
Adequate funding for OSHA’s whistleblower program remains a serious concern.110 The COVID-19 pandemic placed an even greater responsibility on an already starved program, limiting the agency’s ability to respond to workers alleging retaliation for raising safety concerns on the job or wearing their own PPE. In February 2021, OSHA was assigned two new whistleblower statutes to enforce—the Criminal Antitrust Anti-Retaliation Act and the Anti- Money Laundering Act—but has not received increased funding to carry out this additional responsibility, or resources to rebuild the program to the levels it has needed for years.
Under the Obama administration, the Department of Labor made the protection of a “worker’s voice” a priority initiative. As part of this effort, OSHA took a number of actions to strengthen the Whistleblower Protection Program to protect workers who raise job safety issues and exercise other rights from employer retaliation. The Obama administration elevated the whistleblower program, creating a new separate Directorate of Whistleblower Protection Programs at OSHA. (Previously, the program had been part of OSHA’s enforcement directorate.) To improve the timeliness and consistency of case handling, the agency updated and revised its investigators’ manual and trained staff on policies and procedures.
The Obama administration also established a Whistleblower Protection Advisory Committee composed of representatives from labor, management and the public, charged with overseeing and providing advice and guidance to OSHA on its whistleblower protection program. The Trump administration terminated this advisory committee, eliminating oversight on this important program. The Biden administration has prioritized vulnerable workers, equity issues and workers having a stronger voice in the workplace. The Biden administration has continued the annual public whistleblower stakeholder meeting, but it remains to be seen if the formal advisory committee will resume and if there will be any structural changes to the program itself.
The Obama administration created a separate budget line item for the whistleblower program and sought increased funding and staffing for the program. In its budget requests, the Trump administration proposed to reorganize the whistleblower program, eliminating the supervisory personnel for the program in the regional offices, and centralizing management and supervision for the program at OSHA headquarters in Washington, D.C. There were serious concerns that such a centralization would make it harder for whistleblower investigators in the field, who already are stretched thin, to carry out their work.
OSHA whistleblower program data for FY 2020 show that the number of cases received and completed by the agency increased from FY 2019. In FY 2020, OSHA received 3,448 cases and completed 3,122 cases. This compares with 3,091 cases both received completed in FY 2019. Cases completed include cases from other fiscal years, and not all cases received are completed in the same fiscal year. In FY 2020, 74% of the cases received (2,539 out of 3,448) were 11(c) complaints. Workers also filed large numbers of whistleblower cases under the Federal Rail Safety Act (154), the Surface Transportation Act (308) and the Sarbanes-Oxley Act (143).111
The number of whistleblower cases filed under the Trump administration declined, and due to the cutbacks in whistleblower staff, the backlog in cases has grown and continues to be a serious problem. However, the number of cases increased during the COVID-19 pandemic, and it is expected that there will be a significant number of 11(c) cases received in 2021.
The long amount of time to resolve cases is particularly problematic under the OSH Act and those other statutes where there is no opportunity for preliminary reinstatement for workers while the case is being resolved, nor a separate right of action for the complainant to pursue the case on his or her own. During this time, workers are in limbo, with no recourse or redress for discriminatory actions. Other whistleblower statutes provide these rights.
OSHA also has addressed the issue of injury reporting through its whistleblower program—in particular, programs and policies that retaliate against workers or discourage workers from reporting injuries. In recent years, these employer programs and policies have grown in a wide range of industries. Under OSHA regulations, reporting work-related injuries is a protected activity, and employers are prohibited from retaliating against workers who report injuries. The Federal Rail Safety Act, for which OSHA enforces the whistleblower provisions, also includes specific provisions that prohibit retaliation against workers who report injuries.
To address the problems of retaliation related to injury reporting, in March 2012 OSHA issued a policy memorandum to provide guidance to the field.112 The memo outlined the types of employer safety incentive and disincentive policies and practices that could constitute illegal retaliation under Section 11(c) and other whistleblower statutes, and the steps investigators should take in responding to complaints of employer retaliation for injury reporting. To date, the memo remains in effect.
In addition, OSHA issued an electronic injury reporting rule in May 2016 that included provisions prohibiting retaliation against workers for reporting injuries, and making such actions a regulatory violation subject to citation and penalties (29 CFR 1904.35). The anti-retaliation provisions became effective in December 2016 and remain in effect. However, in October 2018, OSHA issued an enforcement memo that limited the scope of these provisions as they apply to workplace safety incentive programs and post-incident drug testing, placing the burden on workers to demonstrate actual retaliation in individual cases, rather than creating a presumption that certain types of programs were impermissible.113 This policy interpretation greatly limits the utility of the anti-retaliation provisions in prohibiting policies and practices that discourage the reporting of injuries.
Employer groups filed legal challenges to the anti-retaliation provisions of the injury reporting rule, but the litigation was held in abeyance until the Trump administration reconsidered other aspects of the injury reporting regulation. On July 20, 2020, the U.S. District Court for the District of Columbia, under a settlement agreement, ordered OSHA to release all the worksite injury and illness reports that employers submitted on Form 300A for 2016 cases by Aug. 18.
Even with improvements in the OSHA whistleblower program in recent years, problems and deficiencies remain. The biggest problems stem from deficiencies in the OSH Act itself. The anti-retaliation provisions of the law were adopted nearly 50 years ago, and are weak and outdated compared with more recently adopted statutes. The OSH Act provides only 30 days to file a discrimination complaint, compared with 180 days provided by a number of other laws. If a worker fails to file a complaint within this time, he or she simply is out of luck, even though retaliation is not always clear in that short of a time frame, and more time often is needed to provide evidence of retaliation.
The OSH Act also has extremely limited procedures for the enforcement of discrimination cases. If there is no agreement or settlement of the findings, the secretary of labor must bring cases in U.S. District Court. Most other statutes provide for an administrative proceeding. The formal procedures of the OSH Act mean meritorious cases may be dropped simply because the solicitor of labor does not have the resources to pursue them. Moreover, unlike other statutes, such as the Mine Safety and Health Act and the Surface Transportation Assistance Act, the OSH Act does not allow a complainant the right to pursue the case on his or her own if the secretary fails to act within a designated timeframe or declines to act at all. And the OSH Act does not provide for preliminary reinstatement, as other statutes such as the Mine Safety and Health Act do, which means that workers who are retaliated against for exercising their job safety rights have no remedy while final action on their case is pending. These deficiencies in the whistleblower program only can be remedied through legislative improvements in the OSH Act.
88 See https://projects.tampabay.com/projects/2021/investigations/lead-factory/gopher-workers/.
89 This reflects the number of federal inspectors plus the number of inspectors “on board” reflected in the FY 2021 state plan grant applications. It does not include compliance supervisors.
90 See osha.gov/sites/default/files/CTS_7132_Whitepaper_FINAL_v2019_9_30.pdf.
91 International Labor Office, Strategies and Practice for Labor Inspection, G.B. 297/ESP/3, Geneva, November 2006. The ILO benchmark for labor inspectors is one inspector per 10,000 workers in industrial market economies.
92Prior to the passage of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the maximum penalty for a serious violation was $7,000 and the maximum penalty for a willful or repeat violation was $70,000 per violation.
93OSHA defines a significant enforcement case as one where the investigation results in a total proposed penalty of greater than or equal to $180,000, or one that involves novel enforcement issues.
94 For the first 10 months of FY 2016, the threshold for a significant case was $100,000; it increased to $180,000 on Aug. 1, 2016, when the increase in maximum penalties took effect.
95 Fairfax, Richard E., Deputy Assistant Secretary, Occupational Safety and Health Administration, Letter to Steve Sallman, Health and Safety Specialist, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW), Feb. 21, 2013, available at osha.gov/laws-regs/standardinterpretations/2013-02-21.
96 Johnson, Matthew S., "Regulation by Shaming: Deterrence Effects of Publicizing Violations of Workplace Safety and Health Laws." American Economic Review, 110 (6): 1866–1904, (2020).
97 OSHA Inspection Data in Response to AFL-CIO Data Request, FY 2020.
98 “Criminal Referrals by OSHA to DOJ or US Attorneys or Significant Aid to Local Prosecutors (Updated April 8, 2016)” and other information compiled and provided by the Office of the Solicitor of Labor, updated April 26, 2021. The information for the early years of the statute is incomplete and may not include all cases prosecuted.
99 In addition to cases prosecuted under the Occupational Safety and Health Act and the U.S. federal criminal code (18 U.S.C. 1001), state and local prosecutors have prosecuted employers for deaths and injuries to workers under their state and local laws. There is no complete accounting of these cases.
100U.S. Environmental Protection Agency, EPA Enforcement Annual Results 2020, available at epa.maps.arcgis.com/apps/Cascade/index.html?appid=9dfe57199392498f872bac6bf2e4867c.
101 Goldsmith, Andrew D., “Worker Endangerment Initiative,” PowerPoint presentation, American Bar Association, Occupational Safety and Health Committee, Miami Beach, Florida, February 2009.
102 Department of Justice, Office of Public Affairs News Release, “The Departments of Justice and Labor Announce Expansion of Worker Endangerment Initiative to Address Environmental and Worker Safety Violations,” Dec. 17, 2015, available at justice.gov/opa/pr/departments-justice-and-labor-announceexpansion- worker-endangerment-initiative-address.
103 Memorandum of Understanding between the U.S. Departments of Labor and Justice on Criminal Prosecutions of Worker Safety Laws, Dec. 17, 2015, available at justice.gov/enrd/file/800526/download.
104 “Frontline: A Dangerous Business Revisited,” March 2008, available at pbs.org/wgbh/pages/frontline/mcwane/penalty/initiative.html.
105 Information on criminal referrals for FY 2018 provided to the AFL-CIO by the Office of the Solicitor of Labor.
107Under the OSH Act, states may operate their own OSHA programs. Twenty-one states and one territory have state OSHA programs covering both public and private sector workers. Connecticut, Illinois, Maine, New Jersey and New York have state programs covering state and local employees only.
108Some states provide safety and health protection to public employees under state laws that are not OSHA-approved plans. In 2014, Massachusetts enacted legislation establishing legally binding safety and health protections for public employees, but this law has not been submitted for federal OSHA approval.
109Department of Transportation, Federal Aviation Administration, Occupational Safety and Health Standards for Cabin Crew Members, Aug. 21, 2013, available at osha.gov/faa/faa_osha.pdf.
110 See nelp.org/publication/osha-failed-protect-whistleblowers-filed-covid-retaliation-complaints/.
111 Occupational Safety and Health Administration, Whistleblower Investigation Data, Report Period: Oct. 1, 2019, to Sept. 30, 2020.
112Richard E. Fairfax, Deputy Assistant Secretary, Memorandum for Regional Administrators, Whistleblower Program Managers, “Employer Safety Incentive and Disincentive Policies and Practices,” March 12, 2012, available at osha.gov/as/opa/whistleblowermemo.html.
113Kim Stille, Acting Director of Enforcement, Memorandum for Regional Administrators and State Designees, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 CFR 1904.35(b)(1)(iv),” Oct. 11, 2018, available at osha.gov/lawsregs/ standardinterpretations/2018-10-11.
Mine Safety and Health
During the eight years of the Obama administration, the state of mine safety and health in the United States saw tremendous improvements. The administration began with the April 2010 Upper Big Branch (UBB) mining disaster—the worst coal mine disaster in the United States in 40 years that killed 29 miners—and ended in 2016 with the safest year in mining history.
The UBB explosion and subsequent investigations highlighted major deficiencies in MSHA’s oversight, and the poor state of safety and health and a lack of compliance not only at UBB, but also at many of the nation’s mines. The Obama administration took aggressive action following the UBB explosion, criminally prosecuting both the company and individuals for violations that led to the deaths. Don Blankenship, the CEO of Massey Energy—the owner of the UBB mine—was found guilty of conspiracy to violate mine safety standards and was sentenced to and served one year in jail.114
Following the UBB explosion, MSHA launched a series of initiatives to strengthen enforcement programs and regulations that significantly improved safety and health conditions at the nation’s mines. These included impact inspections to target mines with poor safety records, and an enforcement program to address mines with patterns of violations. New mine safety and health standards were issued, including rules on rock-dusting to prevent mine explosions, proximity detection systems on continuous mining machines in underground coal mines and pre-shift examination of mines. The most significant MSHA rule issued by the Obama administration was the coal dust rule promulgated in April 2014, which cut permissible exposure to coal dust to reduce the risk of black lung disease.
Under the Obama administration, MSHA also undertook a major initiative—Miners’ Voice—to encourage miners to exercise their rights under the Mine Act, educating miners about their rights and stepping up enforcement of anti-retaliation protections.
The Trump administration took a less aggressive approach to oversight of safety and health at the nation’s mines. President Trump appointed a mining executive as MSHA assistant secretary. David Zatezalo, formerly CEO of Rhino Resources Partners, was confirmed by the Senate in November 2017 on a party-line vote. Rhino Resources has a long history with MSHA, and received two pattern of violation notices from MSHA in recent years for failure to correct repeated and ongoing violations. During the four years of the administration, MSHA largely maintained its enforcement programs, while expanding voluntary programs for mine employers.
At the urging of the mining industry, MSHA moved to roll back important regulations. Immediately upon taking office, the Trump administration took action to delay and weaken MSHA’s rule that required mine examinations at metal and nonmetal mines. This rule, issued in January 2017, extended to metal and nonmetal mines requirements already in place in coal mines that mine operators conduct mine inspections and correct identified hazards before miners begin their shift. The administration delayed the effective date of the rule until June 2, 2018, and then weakened the rule, allowing mine operators to conduct inspections after miners begin work, and eliminating the requirement that hazards identified and immediately corrected be recorded. The changes, finalized on April 9, 2018, were challenged by the mining unions, and a court overturned the rule in June 2019, declaring it would make working conditions more dangerous than the rule it replaced.
The Trump administration suspended work on new MSHA rules on silica and proximity detection systems for mobile mining equipment. Both of these rules, which had been under development for years, were placed on the long-term regulatory agenda, with future action undetermined. Both of these hazards pose serious and growing risks to miners.
Recently, the National Institute for Occupational Safety and Health reported the largest cluster of black lung disease (coal worker pneumoconiosis) among active coal miners that had been identified in years. More than 400 cases of advanced progressive massive fibrosis (PMF), the complicated form of CWP, were reported from just three clinics in Appalachia from 2013 to 2017.115 In central Appalachia (Kentucky, Virginia and West Virginia), 20.6% of long-tenured miners have CWP; the national prevalence of CWP in miners with 25 years or more of tenure now exceeds 10%.116 The current conjecture is that exposure to silica from mining coal seams containing high concentration of quartz is a major factor in causing this increase in disabling lung disease. The MSHA silica standard still allows exposures of up to 100 μg/m3. The standard was set to be lowered following the issuance of the new OSHA silica rule, which reduced permissible exposures to 50 μg/m3 for industries under OSHA’s jurisdiction. However, even under massive pressure, the Trump administration opted to issue only a request for information on silica in 2019 when the agency had plenty of information to issue a proposal or direct final rule, and refused to take further action even in the face of the alarming increase in CWP among miners.
Injuries and deaths from machinery and power haulage equipment that would be addressed by a standard on proximity detection also continue to be a serious problem. In the proposed standard on proximity detection for mobile mining equipment issued by MSHA in September 2015, the agency reported that from 1984 to 2014, there were 42 preventable fatalities and 179 injuries in coal hauling caused by machines and scoops (80 FR 53073). Data from MSHA for 2020 reports seven fatalities in power haulage operations in coal mining, demonstrating that this remains a serious problem, and that a new proximity detection standard is needed.117
In another area, the Trump administration initiated an examination of MSHA’s 2014 coal dust rule to evaluate the effectiveness of the rule. Initially, this review was to include an assessment of whether the rule should be modified to be less burdensome on industry. But due to strong objections to any action to roll back the rule, the review and request for public comments was focused on the effectiveness of the rule in preventing adverse health effects and the most effective control measures for reducing exposures.118 To date, no changes to the coal dust rule have been proposed.
Until the COVID-19 pandemic, the Trump administration largely maintained MSHA’s enforcement programs and policies, but MSHA did not conduct many inspections after March 2020. In 2020, there were 28,725 coal mine citations issued, with 49,260 citations issued in metal and nonmetal mining. In 2019, 43,593 coal mine citations and 55,751 metal and nonmetal mine citations were issued.
Impact inspections were placed on hold during the pandemic and only occurred in the first three months of 2020. During these months, 17 inspections were conducted in coal mines and nine were conducted in metal and nonmetal mines, and if the trend had continued, there would have been more inspections than in 2019, but still fewer than in 2016. In 2019, the number of impact inspections for high-hazard mines, while an increase from 2018, still was significantly less than 2016 in both coal mines (52 inspections in 2019, compared with 32 in 2018 and 128 in 2016) and metal and nonmetal mines (46 inspections in 2019, compared with 37 inspections in 2018 and 61 in 2016). There have been no mines placed on the potential pattern of violations (POV) list since 2015. Since the POV program was initiated in 2010 with 51 mines placed on the list, the number of mines on the list has declined significantly.
For FY 2021, Congress appropriated $260.5 million for mine enforcement. In FY 2020, the budget reorganized MSHA enforcement to combine the coal mine enforcement and metal and nonmetal enforcement into one program, allocating $258.9 million for total mine enforcement. This compares with $254.5 million in total mine enforcement programs in FY 2019. MSHA had justified this reorganization in order to use resources more efficiently, and to direct more resources to metal and nonmetal mining, which is growing, while coal mine activity continues to decline. Consolidation has reduced the targeted expertise in each of the current mine safety enforcement programs, since many inspectors come from either coal or metal and nonmetal industries.
In 2020, MSHA filed 18 discrimination complaints on behalf of miners, the lowest number in a decade, and sought 11 reinstatement cases. In 2019, there was a significant decline in sought reinstatement cases, even though the number of discrimination complaints was similar to 2018. It is not clear why the number of discrimination complaints declined and reinstatements remained low; the COVID-19 pandemic may have played a role.
The Trump administration took concerning actions that limited miners’ rights under the Mine Act. In July 2017, the administration launched a training assistance initiative in response to an increase in coal mine fatalities and injuries among less experienced miners. Under this initiative, MSHA inspectors visited mines to provide training and assistance to less-experienced miners. For a period of time, MSHA inspectors were instructed to leave their credentials at the office, leaving them with no authority to enforce mine safety violations that are identified. Moreover, during these visits, miners’ representatives were not permitted to walk around with the MSHA inspector as is provided under section 103(f) of the Mine Act. This practice stopped, but put many lives in danger.
The last year of the Obama administration was the safest on record for the mining industry, with record low fatalities and injuries reported. In the four years of the Trump administration, overall mining fatalities ranged between 27 and 29 deaths. Data from MSHA for 2020 show 29 overall fatalities in mining, with an increase in metal and nonmetal miner deaths at 24 fatalities, and a decrease in deaths in coal miners with five fatalities. The lack of improvement in fatality numbers should serve as a warning that strong safety and health protections for miners must be maintained and improved.
It is anticipated that the Biden administration will take a similar approach to mine safety and health as the Obama administration. Jeannette Galanis was appointed as the acting assistant secretary of labor for mine safety and health until a permanent assistant secretary is nominated and confirmed. Galanis previously served as MSHA chief of staff in the Obama administration. In its first 100 days, the Biden administration has placed a larger emphasis on COVID-19 protections for miners, as discussed previously. It is anticipated the current administration will halt Trump-era efforts to roll back or weaken other protections, and will resume work on standards for silica and proximity detection systems for mining equipment.
114 Department of Justice, U.S. Attorney’s Office, Southern District of West Virginia, “Blankenship sentenced to a year in Federal prison,” April 6, 2016, available at justice.gov/usao-sdwv/pr/blankenshipsentenced- year-federal-prison.
115 Blackley, D.J., L.E. Reynolds, C. Short, et al., “Progressive Massive Fibrosis in Coal Miners From 3 Clinics in Virginia,” Journal of the American Medical Association, 319(5):500–501, (2018).
116 Blackley, D.J., C.N. Halldin and A.S. Laney, “Continued Increase in Prevalence of Coal Workers’ Pneumoconiosis in the United States, 1970–2017,” American Journal of Public Health 108, No. 9 (Sept. 1, 2018): pp. 1220–1222. DOI: 10.2105/AJPH.2018.304517.
117 Mine Safety and Health Administration, Fatality Reports, available at msha.gov/data-reports/fatalityreports/ search.
118 Mine Safety and Health Administration 30 CFR Parts 70, 71, 72, 75 and 90. Retrospective Study of Respirable Coal Mine Dust Rule, Request for Information. 83 Fed. Reg. 31710, July 9, 2018.
Key Issues in Safety and Health: Status and Progress
There are a large number of safety and health hazards and issues in need of attention. But there are several issues that pose broad and growing threats to workers that warrant special focus and intervention.
Infectious diseases are known occupational hazards that have clear control measures to prevent exposures. There are many types of infectious diseases; each one can spread through a combination of transmission routes, but infectious disease exposures can be prevented and controlled following similar methods to controlling other workplaces hazards. Since OSHA’s inception, the agency has had a myriad of experiences involving workplace infectious disease exposures, including tuberculosis, West Nile virus, Lyme disease, zoonotic influenza, Ebola and other coronaviruses, SARS-CoV-1 (SARS) and MERS-CoV (MERS). The experience of past infectious disease outbreaks informs the response to the COVID-19 pandemic.
H1N1 Influenza Pandemic
The 2009 H1N1 influenza pandemic provided another clear warning the United States was unprepared for a serious infectious disease outbreak. Despite years of planning, many health care facilities were not prepared for the pandemic flu outbreak. Many health care employers had not trained workers about potential risks and appropriate protective measures prior to the outbreak, and failed to do so after the pandemic emerged. In many facilities, there were inadequate supplies of respirators and other protective equipment, and the proper equipment was not provided. Infection control procedures failed to separate infected patients from those who were not infected, particularly during the earlier stages of the outbreak. In the wake of the pandemic, billions of federal dollars were spent to improve preparedness, particularly for health care facilities. Unfortunately, the subsequent experience with the Ebola outbreak indicates those efforts were not sufficient or lasting.
Despite mounting research and other evidence, refusal by the CDC and the corporate infectious disease community to recognize airborne transmission as the major route by which these viruses spread has inhibited early intervention and the protective measures that would be most effective at preventing infection, symptoms, chronic disease and death. These measures include ensuring people do not share the same air space or inhale potentially contaminated air through distancing, occupancy, proper ventilation and the use of respirators rather than face coverings in crowded indoor spaces for long durations (i.e., the workplace).
The 2014–2015 Ebola epidemic in West Africa was a grim reminder that infectious diseases pose a significant threat to the public and workers, and these outbreaks quickly can become global threats. This Ebola outbreak, thought to have begun with the infection of a small boy in Guinea in December 2013, was the largest recorded. Since this epidemic, other outbreaks have occurred in the Democratic Republic of Congo.119
Health care workers caring for Ebola victims at the center of the epidemic and in other countries also were affected. In the United States, two health care workers at Texas Presbyterian Hospital in Dallas—Nina Pham and Amber Vinson—were infected in September 2014 after caring for an Ebola-infected patient from Liberia who came to the hospital for emergency treatment. Those health care workers were treated at specialized Ebola treatment centers and survived. The Ebola-infected patient—Thomas Eric Duncan—died.
The investigation of the outbreak at Texas Presbyterian revealed the hospital was totally unprepared to care for patients infected with Ebola or other serious infectious diseases. There were no protocols in place; health care workers were not provided adequate protective equipment; and workers had not been trained. Following the outbreak in Texas, it became clear that the vast majority of health care facilities were unprepared to receive and care for patients with serious infectious diseases.
Subsequent to the Texas outbreak, the Centers for Disease Control and Prevention strengthened its recommended infection control measures for caring for Ebola patients and issued guidance on protecting other workers who could be exposed to the Ebola virus in the course of their work (e.g., emergency medical technicians, waste workers and airline workers). But as the United States continues to experience during the COVID-19 pandemic, CDC guidelines are only voluntary, have no legal force and can be changed at any time in a way that is piecemeal, and can be harmful where comprehensive prevention plans that focus on preventing exposures also do not exist. OSHA is the agency with the authority to set and enforce workplace protections against health and safety hazards—including infectious diseases—CDC guidelines are not enough to protect workers.
OSHA Rulemaking Efforts
The experience with two major infectious disease outbreaks in the last decade underscored the need for mandatory measures to protect health care workers and other workers at high risk from exposures to infectious diseases. Federal OSHA has some limited, existing standards to help protect workers from infectious disease exposures, including rules on bloodborne pathogens, personal protective equipment and respiratory protection. But there is no broad-based infectious disease standard to protect workers from airborne transmissible diseases such as tuberculosis, influenza and coronaviruses.120,121 Previous efforts by OSHA to strengthen protections for health care workers, including a standard on tuberculosis, never reached fruition.
Following the H1N1 pandemic, OSHA began work on an infectious disease standard. In May 2010, OSHA issued a request for information to seek input from the public on the rule. The draft proposed rule was reviewed by a small business panel, which issued a report to OSHA in January 2015, as required by the Small Business Regulatory Enforcement Fairness Act. OSHA continued preparing the proposed rule and the required analysis for publication until the standard was demoted on the regulatory agenda to a long-term action item by the Trump administration in 2017. The completion of this standard would have ensured employers were better prepared for the current coronavirus pandemic, and could provide the essential framework for an emergency temporary standard for COVID-19 and workplace prevention plans.
Workplace violence is a major problem that is getting worse for workers in the United States. It is the third-leading cause of death on the job and the fifth-leading cause of nonfatal injury with days away from work in private industry. In 2019, more than one in every six work-related deaths was attributed to workplace violence for a total of 841—more than from equipment or fires and explosions. This is an increase from 828 in 2018 and 807 in 2017.
During the Obama administration, OSHA enhanced enforcement on workplace violence using the general duty clause of the OSH Act, updated guidance documents and committed to developing a workplace violence standard. But under the Trump administration, progress stalled. Legislation that just passed the House, the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195), would require federal OSHA to promulgate a standard to protect these workers at especially high risk of violence on the job. A court decision in recent years supports the need for an OSHA standard, recognizing workplace violence as a serious hazard that can be controlled, and that workers need protection from this growing threat.
Workplace violence has increased in the COVID-19 pandemic due to confrontations about pandemic safety recommendations and policies inside of workplaces. This is especially true in already-high-risk settings for violence: health care, transit, retail and other settings. The CDC issued guidance for retail and service businesses recognizing that threats and assaults had increased in this sector.122 Workplace violence has increased largely because employers are requiring workers to implement COVID-19 prevention policies with customers and clients without proper support and training.
Homicides and Suicides
Homicides account for the majority of workplace violence deaths: 454 in 2019, similar to 453 in 2018 and 458 in 2017. Eighty-eight of these homicides were among women workers, a proportion that has increased since last year despite the number of total workplace homicides remaining largely unchanged. In 2019, workplace homicide was the second-leading cause of job death for women workers, accounting for 20% of their work-related fatalities (roadway incidents was first). Domestic violence in the workplace has become a worsening problem; women were more than five times more likely to be killed by a relative or domestic partner at work than men.
White workers experienced 43% of workplace homicides and Hispanic or Latino workers experienced 16% of homicides. Homicides among Black workers were disproportionate relative to overall employment: Black workers experienced 28% of workplace homicides, while representing only 13% of total employment. Overall, homicides were responsible for 20% of deaths among Black workers (127 out of 634 deaths), 7% of deaths among Latino workers (74 out of 1,088 deaths) and 6% of deaths among white workers (197 out of 3,297 deaths). Data were not available for Asian workers in 2019.
Workplace homicides largely occur in retail trade (84 deaths), accommodations and food services (57 deaths), public administration (most likely due to police protection) (51 deaths), and transportation and warehousing (45 deaths). Firearms were the primary source involved in workplace homicides, responsible for 362 workplace deaths.
In 2019, 307 workers committed suicide at work, the largest number of work-related suicides since BLS began reporting this data—291 deaths in 1992. The last major increases in workplace suicides were just as the recession hit in 2008, when workplace suicides increased by 33%, and in 2016, when workplace suicides increased by 27%. Hopelessness, uncertainty and toxic work environments that include increased work pressures, workplace bullying and lack of control most likely have contributed to this growing problem. One study published by NIOSH examined U.S. workplace suicides from 2003 to 2010.123 In that time period, 1,719 people died by workplace suicide. According to the study results, workplace suicides were highest for men, workers ages 65 to 74 years, those in protective service occupations, and those in farming, fishing and forestry.
Nonfatal, Serious Injuries
The majority of nonfatal injuries from violence occur in health care, social assistance and educational services. The Bureau of Labor Statistics reported that in private industry, more than 30,000 workplace violence incidents led to injuries involving days away from work in 2019. These attacks are serious, underreported and often leave workers physically and emotionally scarred for life. Women workers experience two-thirds of these serious injuries.
Even as the reported overall U.S. injury and illness rate has steadily declined since 1992—by 71% overall—the injury rate for workplace violence decreased until the late 1990s, then increased to 4.4 per 10,000 workers. All of these numbers and rates only reflect injuries that led to days away from work, not all violence-related injuries reported or all that occur.
Health care workers are more than three times as likely to suffer a workplace violence injury as other occupations, and workers in psychiatric settings are at especially great risk, with a workplace violence injury rate of 152.4 per 10,000 workers. This is a decrease since 2018 (175.0) which was a decrease from 2017, when the highest-ever-recorded injury rate for this industry was 181.1. Work-related violence is significant in other areas, too. In 2019, transit and intercity bus drivers and food service managers experienced serious violence injuries at rates of 15.9 and 12.6 per 10,000 workers, respectively. Since 2008, the rate of workplace violence injuries has increased 237% in private sector educational services, 250% in state government and 134% in local government.
Health Care and Social Assistance
Workers in the health care and social service industries are particularly affected. The nature of their front-line work—direct contact with patients and clients—makes these workers at great risk for job-related violence. There were 32 homicides among workers in health care and social assistance in 2019, compared with 24 in 2018 and 31 in 2017.
In 2019, the health care and social assistance sector accounted for 48% of lost-time injuries from workplace violence (excluding violence from animal and insects). Workers in nursing and residential care facilities experienced the greatest number of injuries from violence, followed by those in hospitals, social assistance and ambulatory health care services. Nursing assistants, orderlies and psychiatric aides, home health and personal care aides, and registered nurses were the occupations at greatest risk of injuries from violence, and patients were responsible for 54% of reported injuries related to violence.
In 2019, the private sector rate of workplace violence in health care and social assistance was 14.7 per 10,000 workers, an increase of 52% since 2010. During the same decade, workplace violence rates for hospitals increased 95%—specifically, 98% in psychiatric hospitals, although this difference has fluctuated over time and last year was much higher at 149%. Since 2010, the rate of violence in nursing and residential care facilities has increased 41%, in home health services 39% and in social assistance 25%. Home-based services such as home health, client management and social services have been playing a larger role in physical and mental care.
Public sector workers are at even greater risk from workplace violence. In 2019, state government health care and social service workers were more than 10 times more likely to be assaulted than private sector health care workers (151.6 vs. 14.7 per 10,000 workers). In state government, psychiatric aides experienced injuries caused by violence at a rate of 1,460.1 per 10,000 workers; home health and personal care aides at 380.2 per 10,000 workers; nursing assistants at 216.9 per 10,000 workers. Survey results released in 2012 by the Merit Systems Protection Board reported that one in eight federal government employees witnessed workplace violence.124 The majority of these accounts came from the Veterans Administration, where 23% of employees said they had witnessed at least one act of violence at work over a two-year period.
This violence against health care and social service workers is foreseeable and preventable. With the expected job growth in the health care and social assistance sectors, workplace violence events will continue to rise without safeguards in place. Workplace controls are more necessary than ever to address this systemic and serious issue, and reduce the prevalence and severity of violence in the workplace.
OSHA Guidelines and Enforcement
During the Obama administration, in the absence of a federal standard, OSHA enhanced its efforts to address the growing problem of workplace violence through guidelines and enforcement initiatives using the general duty clause (Section 5(a)(1) of the OSH Act).
In April 2015, OSHA updated its “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,”125 a comprehensive document outlining the contents of violence prevention programs using hazard assessments and the hierarchy of controls. Earlier, OSHA issued several guidance documents for other high-risk populations, including “Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments” and a fact sheet, “Preventing Violence against Taxi and For-Hire Drivers.”126,127
In 2011, OSHA issued a directive, “Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence,” which established uniform procedures for OSHA field staff when responding to incidents and complaints of workplace violence and conducting inspections in industries with a high risk of workplace violence, including health care and social service settings and late-night retail establishments.128 In January 2017, the agency issued a new directive, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence.” This directive clarifies the different types of health care settings where workplace violence incidents are reasonably foreseeable; expands the OSHA recognized high-risk industries to include corrections and taxi driving; and provides more resources and guidance to OSHA inspectors.129
In 2016, federal OSHA Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming) instituted a regional emphasis program in residential mental intellectual and developmental disability facilities (NAICS 623210), focused on workplace violence hazards.130 This program was renewed yearly and now is effective through September 2024.
OSHA’s enhanced enforcement efforts resulted in an increased number of workplace violence inspections conducted and citations for general duty clause violations during the Obama administration. The Trump administration continued these programs, but conducted fewer workplace violence inspections and issued fewer citations, which halted completely during the COVID-19 pandemic.
In FY 2020, OSHA conducted 43 workplace violence inspections. OSHA issued two serious violations that resulted in a current median penalty of $12,687, and one repeat violation that resulted in an initial penalty of $72,930. During the COVID-19 pandemic, on-site inspections and enforcement slowed significantly.
In FY 2019, OSHA conducted 76 workplace violence inspections—13 of these involved a fatality or catastrophe. OSHA issued four serious violations that resulted in a current median penalty of $11,082, and one repeat violation that resulted in an initial penalty of $72,930.
In FY 2018, OSHA conducted 78 workplace violence inspections—10 of these involved a fatality or catastrophe. OSHA issued two serious violations that each resulted in an initial penalty of $12,934, and two repeat violations that each resulted in an initial penalty of $71,137.
In FY 2017, OSHA conducted 85 workplace violence inspections—four of these involved a fatality or catastrophe. OSHA issued six serious violations that resulted in an initial median penalty of $11,525.
In FY 2016, OSHA conducted 124 workplace violence inspections—15 of these involved a fatality or catastrophe. OSHA issued nine serious violations that resulted in a current median penalty of $12,471, and two willful serious violations that resulted in a current median penalty of $42,000.
This compares with 33 inspections in FY 2015, 90 inspections in FY 2014 and 91 inspections in FY 2013.
Where there are workplace violence hazards, but OSHA may not issue a general duty clause citation, the agency can issue a Hazard Alert Letter—a voluntary measure that warns employers about the dangers of workplace violence and identifies corrective actions. OSHA issued HALs in 40 investigations in FY 2020, 65 in FY 2019, 60 in FY 2018, 64 in FY 2017, 71 in FY 2016, 18 in FY 2015, two in FY 2014 and five in FY 2013.
The need for enhanced efforts by OSHA to address workplace violence was underscored by a March 2016 report by the U.S. Government Accountability Office. The report, “Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence,” examined the magnitude of the problem, existing workplace violence prevention programs and policies, state and local ordinances and the need for these programs and policies, including the need for an OSHA workplace violence prevention standard for health care and social service workers. The report found that workplace violence is a serious and growing concern for 15 million health care workers, and is preventable through violence prevention programs.131 The GAO recommended that OSHA improve workplace violence citation training for its inspectors, follow up on Hazard Alert Letters, assess current efforts and determine whether the agency should take regulatory action.
A decision by the Occupational Safety and Health Review Commission affirmed OSHA’s authority to enforce against workplace violence hazards under the general duty clause. In March 2019, OSHRC issued a 3–0 decision in Secretary of Labor v. Integra Health Management Inc., finding that workplace violence is a serious and recognized hazard that can feasibly be controlled and mitigated.132 This case involved the death of a young woman caseworker stabbed by a homebased client in 2012. Following an investigation, OSHA cited Integra for a serious violation of Section 5(a)(1) of the Occupational Safety and Health Act, the general duty clause, for exposing employees to “the hazard of being physically assaulted by members with a history of violent behavior,” and for failing to report the employee’s death in a timely manner to OSHA. OSHA sought a total of $10,500 in penalties. In 2015, an administrative law judge upheld the citations, but the employer appealed the case to the full review commission, where it was pending since July 2015. The AFL-CIO and several unions filed briefs in support of OSHA’s citations against Integra, citing OSHA’s clear authority over enforcing violence prevention in the workplace and experience in workplace violence recognition and abatement measures, as well as industry recognition of the problem.133
While this ruling will assist OSHA in enforcing against workplace violence hazards, OSHA’s authority to use the general duty clause is limited. Securing a general duty clause citation requires a higher burden than having an enforceable standard that outlines for the employer the requirements specific to workplace violence.
OSHA under the Trump administration took very limited action on workplace violence, despite the severity of the issue and the ability to mitigate it in specific settings. The total number of workplace violence inspections by the agency decreased throughout the Trump administration.
Federal Regulatory Action
In response to the growing threat from workplace violence, there have been increased efforts to secure workplace violence protections through mandatory regulations. In July 2016, a coalition of unions petitioned OSHA to develop a federal workplace violence standard for health care and social assistance workers.134 Another union petition was filed seeking a standard in the health care sector. In response to the petitions, OSHA issued a request for information to seek input and information on a workplace violence standard, and in early January 2017 held a public meeting of interested stakeholders. At the meeting, the Obama administration announced that OSHA was accepting the petitions and would develop and promulgate a workplace violence standard for health care and social assistance, a critical first step in the process for federal OSHA to protect workers.
However, the Trump administration failed to move forward on the development of the workplace violence standard. It was placed into “long term” status on the Trump administration’s first regulatory agenda and moved back onto the agenda in Fall 2017; however, the standard never underwent small business review or advanced. It is anticipated that the Biden administration will prioritize this issue.
In February 2021, Rep. Joe Courtney (Conn.) introduced legislation—The Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195)—to help protect these workers. Similar legislation had been passed by the House of Representatives in November 2019 with bipartisan support (251–158) as H.R. 1309. The bill requires OSHA to issue a federal workplace violence prevention standard, requiring employers in the health care and social service sectors to develop and implement a plan to identify and control workplace violence hazards. The bill ensures that front-line workers have input in the plan, helping employers identify commonsense measures like alarm devices, lighting, security, and surveillance and monitoring systems to reduce the risk of violent assaults and injuries. The legislation would ensure OSHA protections against violence for all covered workers in the scope of the bill, regardless of whether they otherwise have OSHA coverage in their state. The bill incorporates important elements from OSHA’s current “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.”
The bill passed April 16, 2021, with even more bipartisan support than in the previous Congress (254–166). The bill has been received in the Senate, where Sen. Tammy Baldwin (Wis.) had previously championed similar legislation, and it has been referred to the Committee on Health, Education, Labor and Pensions.
State Regulations and Legislation
A number of states have taken action to adopt laws, standards and policies on workplace violence, which vary widely. In December 2016, the California Department of Industrial Relations filed its final workplace violence standard with the California secretary of state, with an effective date of April 1, 2017.135 This comprehensive standard, issued in response to a legislative mandate, protects health care workers in the public and private sectors from workplace violence. It was developed through consensus rulemaking, and it is a good model for a comprehensive regulatory approach to combat workplace violence. In response to a 2014 petition from a teacher, the California Occupational Safety and Health Standards Board tasked an advisory committee to examine workplace violence prevention in all California workplaces, which currently is going through the state process to develop a workplace violence standard for all of general industry.
New York passed a comprehensive workplace violence standard in 2006, but it only covers the public sector.136 Public employers are required to develop and implement programs to prevent and minimize workplace violence. Connecticut, Illinois, Maryland, New Jersey and Washington have adopted some form of legislation specifically focused on health care settings. The Maryland legislation, which was implemented on Oct. 1, 2014, addresses all workplace injuries in health care facilities by means of an overall safety program, which includes workplace violence hazards. The measure requires public and private health care employers to establish a safety committee consisting of management and employees, and it requires the committee to establish a safety program that consists of 1) a written policy; 2) an annual comprehensive risk assessment and recommendations for injury prevention; 3) a process for reporting, responding to and tracking incidents of workplace injuries; and 4) regular safety and health training.
State and local ordinances are an important piece in addressing workplace policies and practices related to workplace violence, but workers need a strong, comprehensive OSHA standard to address this growing national problem.
Chemical Exposure Limits and Standards
Occupational exposure to toxic substances poses a significant and unreasonable risk to millions of workers and is a major cause of acute and chronic disease in the United States. Occupational diseases caused by chemical exposures are responsible for more than 50,000 deaths and 190,000 illnesses each year, including cancers and other lung, kidney, skin, heart, stomach, brain, nerve and reproductive diseases.137,138 Many of these diseases are chronic, serious and disabling for millions of workers, and impair their professional and personal lives; this problem largely goes underreported, and its effects are understated. The costs of fatal and nonfatal occupational illnesses from chemical exposures create an enormous burden on the U.S. public health system.139
Workers face particular risks from chemical exposures. They make chemicals or are otherwise exposed early in the chemical life cycle, often at the highest exposures, for long durations, when little to no hazard information is known; are a conduit for bringing chemicals home to their families via clothing, equipment, skin and hair; and dispose of chemicals and sort through chemical-containing waste. It is not inevitable that workers develop diseases because of their work with chemicals. Where proper controls are installed or safer alternatives are used, exposures can be controlled and diseases prevented.
OSHA has issued standards on some major chemical hazards, including benzene, asbestos and lead, that have significantly reduced exposures and disease. But relatively few chemical standards have been issued; most were issued during OSHA’s first decade, and most chemical hazards are unregulated.
A bipartisan law passed in 2016 created a key opportunity through EPA to improve the federal process for assessing chemical toxicity and strengthening worker protections from chemical exposure. However, the Trump administration and the chemical corporations derailed EPA’s efforts to fulfill its legislative mandate, and protect workers and the public from dangerous chemical exposures. The Biden administration has taken some initial positive steps to reset EPA’s course on using science and evidence in TSCA implementation, and more action is needed to ensure workers are protected from chemical exposures, as mandated by Congress.
History: OSHA and Chemicals
One of the Occupational Safety and Health Administration’s primary responsibilities is to set standards to protect workers from toxic substances. Since Congress enacted the Occupational Safety and Health Act in 1970, OSHA has issued comprehensive health standards for only 18 individual chemicals and one separate rule for 14 carcinogens. OSHA issued most of its chemical standards in its first two decades, and only after the chemical had been making workers sick for a long time. The most recent were silica in 2016 and beryllium at the beginning of 2017. Today there are approximately 84,000 chemicals in commerce, most of them unregulated.140
The OSHA permissible exposure limits in place under 29 CFR 1910.1000 that govern exposure for approximately 400 toxic substances were adopted in 1971 and codified the American Conference of Government Industrial Hygienists’ (ACGIH) Threshold Limit Values from 1968.141 Most of these limits were set by ACGIH in the 1940s and 1950s, based upon the scientific evidence available. Many chemicals now recognized as hazardous were not covered by the 1968 limits, and many of the others with PELs are woefully outdated. In 1989, OSHA attempted to update these limits, but the revised rule was overturned by the courts because the agency failed to make the risk and feasibility determinations as required by the OSH Act.
Several years ago, the American Industrial Hygiene Association, major industry groups and labor attempted to reach agreement on a new approach to update permissible exposure limits through a shorter process that would allow quick adoption of new limits that were agreed upon by consensus. Unfortunately, those efforts stalled when small business groups objected to an expedited process that would apply to a large number of chemicals, and the Bush administration refused to take a leadership role in developing and advancing an improved process for setting updated exposure limits.
In October 2013, OSHA made an annotated comparison list of the legal and recommended exposure limits for chemical substances as a tool to assist in the assessment and control of exposures. The agency tables compare OSHA PELs for general industry, the California Division of Occupational Safety and Health PELs, National Institute for Occupational Safety and Health-recommended exposure limits and American Conference of Governmental Industrial Hygienist threshold limit values.142 At the same time, the agency unveiled a web-based toolkit to assist employers and workers to identify safer chemicals that can be used in place of more hazardous ones. However, this is only guidance information, and since it was posted, there have been no signals for increased action on enforcement in this area. In October 2014, OSHA issued a Request for Information (RFI) requesting comments on approaches to improving the management of chemical exposures and updating permissible exposure limits. The agency’s intent of this RFI was never clear, and OSHA’s work remains stalled on chemicals.
In the Trump administration’s first unified regulatory agenda―issued on Dec. 14, 2017―all chemical regulatory activity for OSHA had been removed for the near future, including this development of standards on styrene and 1-bromopropane, and updates in PELs.During his administration, the only OSHA chemical regulatory activity consisted of eliminating provisions from the beryllium standard for construction and shipyard workers that involved dermal and emergency exposures, and a Request for Information on expanding Table 1 of the silica standard for the construction industry.143,144
OSHA’s system for addressing toxic substances is broken. Its standard-setting process has become unduly burdensome and lengthy, and the agency is not under strict timelines to establish protections from chemicals. According to a recent congressional report, it takes OSHA between 4.3 and 11.5 years to issue a new standard―an average of 8 years.145 The most time OSHA has taken to complete the rulemaking process was 19 years each for the two most recent chemical standards—silica and beryllium. The result of all of this is that OSHA does not regulate many serious chemical hazards at all, or some chemicals are subject to weak and out-of-date requirements, and people remain unprotected from chemical hazards at work.
Even where OSHA has regulated chemicals, OSHA protections alone are not sufficient to protect workers from dangerous chemicals. Many workers in the United States are not covered by the OSH Act. Currently, 8.1 million public sector workers, including many firefighters and teachers; 15 million self-employed workers; 350,000 workers in the mining industry; and many agricultural workers on small farms are not afforded safety and health protections under the OSH Act. Even where OSHA has coverage, OSHA is staffed with so few resources that in 2020, it would have taken federal OSHA inspectors 253 years to visit every workplace in the country once—in 2019, when OSHA enforcement was not impacted by the pandemic, it would have taken federal OSHA 162 years. Unions have some ability to bring in OSHA to help investigate a chemical issue at work, but access to OSHA for unorganized workers, especially as it relates to chemical exposures, is much more difficult—and OSHA has not had a lot of success bringing forward enforcement cases on any unregulated chemical exposure in a union or nonunion setting.
Some states, including California and Washington, have done a better job updating exposure limits, and as a result, workers in those states have much better protection against exposure to toxic substances. Additionally, state OSHA plans could have chosen to adopt and enforce the 1989 PELs federal OSHA was required to vacate. Minnesota OSHA continues to enforce the 1989 PELs.146 California recently resumed activity on chemicals through its Health Effects Advisory Committee, prioritizing chemicals for which to establish PELs.147
EPA: Opportunity for Progress
The Toxic Substances Control Act passed by Congress in 1976 aimed to protect the public from dangerous chemical exposures and prevent disease by giving the Environmental Protection Agency authority to regulate chemicals throughout the environment and chemicals being newly manufactured. Lawmakers intended the original law to be a gap-filling statute, giving EPA coexisting and compatible authority with other agencies over chemical exposures. But court decisions thwarted EPA’s efforts to regulate even the most dangerous chemicals, including asbestos, and left TSCA toothless and ineffective in protecting people from exposure to chemicals.
In 2016, Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LSCA), a bipartisan effort to update and address the deficiencies of the original TSCA. This update assigned EPA a specific mandate to include workers as a potentially vulnerable subpopulation at particular risk to disease from chemicals, and gave authority to EPA to eliminate or reduce that risk, through regulation or bans, for chemicals that have been in use for decades and for chemicals new to the market. Further, the revised act gives EPA authority to prioritize and evaluate chemicals that pose a danger to human health or the environment where: 1) other agencies cannot or will not adequately regulate a substance, or 2) the substance is already regulated, albeit ineffectively, by another agency, such as OSHA. Importantly, EPA must prioritize and assess unregulated or inadequately regulated chemicals on a strict timeline in order to protect people and prevent disease.
Soon after the law was passed, EPA was required to identify 10 priority chemicals to expedite through the risk evaluation and risk management processes since the agency already had done extensive work on these chemicals throughout the years. In December 2017, EPA identified these as:
- Carbon Tetrachloride
- Cyclic Aliphatic Bromide Cluster (Hexabromocyclododecane or HBCD)
- Methylene Chloride
- N-Methylpyrrolidone (NMP)
- Pigment Violet 29 (Anthra[2,1,9-def:6,5,10-d'e'f]diisoquinoline-1,3,8,10(2H,9H)- tetrone)
- Tetrachloroethylene (PERC)
- Trichloroethylene (TCE)
As the priority chemicals move through the evaluation and regulation process, EPA must continue rounds of 20 high-priority and 20 low-priority chemicals—once finalized, the highpriority chemicals will be further assessed through risk evaluation and risk management under LSCA. EPA must consult with other agencies throughout the process regarding relevant exposures, controls and regulatory action.
Before LSCA, EPA helped prevent chemical exposures in workplaces by requiring worker protections for new chemicals or new uses, including engineering and work practice controls such as ventilation requirements and changing processes, and some exposure limits. Under LSCA, EPA has authority that OSHA does not have, such as the ability to regulate, enforce or compel data from manufacturers; ban a chemical; and require substitution with a safer chemical or process.
Early Implementation of the Revised TSCA
Seven months after Congress passed LSCA, the Trump administration took office. While the Obama administration’s EPA had been adhering to strict deadlines outlined in the law, the Trump administration delayed issuing chemical assessments, weakened the protections proposed by the previous administration and narrowed the scope of uses that the agency will assess for the first 10 chemicals. The law specifically requires EPA to examine all uses of a chemical in its lifecycle and to make decisions based on health reasons only—not cost or impact on business— and to do so under strict timelines.
During the Trump administration’s four years, EPA weakened the two major framework rules on the methods for prioritizing and assessing chemicals, compared with the proposals issued under the Obama administration. These framework rules have set the stage for all future implementation of the new chemical law unless reissued under another administration. The agency issued risk assessments for its released scoping documents for its 10 priority chemicals that totally ignored major occupational uses and scenarios and shifted its responsibility to OSHA, despite EPA’s responsibility under the law to address worker exposures throughout a chemical lifecycle.
For example, in its scoping document for asbestos, EPA removed legacy uses of asbestos from its regulatory scope, even though these uses are the major cause of occupational and public asbestos exposure in the United States today—they may be legacy uses, but are not legacy exposures. In November 2019, the 9th U.S. Circuit Court of Appeal’s decision in Safer Chemicals Healthy Families v. EPA disagreed with the EPA’s approach and ruled that the exclusion of legacy and disposal uses by the EPA was unlawful.148 The agency finalized its risk evaluation for asbestos without addressing legacy and disposal uses, stating its intention to issue a separate evaluation for these uses.
Initially, the agency had made slow progress on regulating the 10 priority chemicals listed above, and limited the assessments to artificially minimize the risk for workers and the public. To date, the agency has issued final risk evaluations for all 10 priority chemicals, has identified 20 high-priority and low-priority chemicals for evaluation, and has begun holding stakeholder meetings for the risk management stage for the first 10 chemicals.
In March 2019, EPA issued a ban on consumer uses of methylene chloride, but not industrial uses as proposed by the Obama administration. According to a recent study, 85 people died due to methylene chloride exposure in 1980–2018, and 87% of these were workers.149 Methylene chloride can overcome a person in minutes, and long-term exposures cause chronic health conditions, including cancer. Most of these deaths have been workers exposed to methylene chloride paint strippers. With the proposal to ignore risks to workers and only ban consumer uses, the Labor Council for Latin American Advancement (LCLAA) and Natural Resources Defense Council filed a legal challenge for the agency’s failure to address risks caused by industrial uses.150 North America’s Building Trades Unions supported the petitioners through an amicus brief. A court decision is anticipated.
In response to the final risk evaluations for the initial 10 priority chemicals, unions, environmental groups and allies have filed several legal challenges against the agency for ignoring major occupational uses. The United Steelworkers (USW) challenged the methylene chloride final risk evaluation, stating that the evaluation underestimated risks to workers by assuming personal protective equipment sufficiently protected workers and ignored other exposure scenarios.151 The UAW challenged the final risk evaluations for HBCD, citing similar issues leading to an underestimate of risks to workers.152 It is anticipated that the Biden administration will reverse course, better reflect science in evidence in its evaluations, and more appropriately examine and mitigate risks to workers ignored in the last four years.
The amended law gave EPA more authority to put in place more protections on new chemicals coming onto the market. Under the Trump administration, EPA emphasized the allowance of voluntary approaches by employers rather than using its enforcement authority to require employers to implement engineering controls as chemicals move through the supply and use chain. Specifically, EPA allowed employers to rely on warning statements in Safety Data Sheets that instruct workers to wear personal protective equipment, rather than issue enforceable orders to the company that require the use of more effective controls. In 2020, EPA allowed a new chemical onto the market with risk of more than 25,000 times its acceptable risk level for workers, based solely on the warning statements about PPE in the Safety Data Sheets.153 An effort by a coalition of chemical companies, called the New Chemicals Coalition, attempted to push EPA’s longstanding authority on establishing workplace protections for new chemicals and new uses of chemicals onto OSHA, an agency with no ability to regulate chemicals not introduced yet to the market. Any claim that existing general OSHA standards will protect workers is maliciously inaccurate.
Since 2011, OSHA only has issued 28 general duty clause citations for airborne exposures of (existing, not new) chemicals—there is no OSHA PEL for 20 of these, and for the remaining eight there is only a PEL with no requirements for exposure monitoring or medical surveillance. In the rare case that general duty clause citations have been issued, four major conditions have been true:
- The cases involved clinical health effects experienced by workers at the cited facility, consistent with “serious physical harm.”
- The majority of cases were symptoms with acute onset (minutes to hours) following inhalation that were anticipated to worsen with continued harmful exposure.
- The cases involved occupational exposures to a relatively well-studied chemical/chemical class at very high levels consistent with “recognized hazard.”
- Violations were issued because evidence documented workers at the facility were physically harmed by a hazardous exposure to the chemical inhaled during workplace operations, and not because airborne exposure exceeded an occupational exposure limit.
OSHA does not have the ability to adequately regulate chemical exposures in the workplace, and virtually has no ability to regulate new chemicals—a major reason Congress gave EPA the authority and responsibility to do so under LSCA.
The Biden administration issued an executive order to evaluate all policies, guidelines, templates and regulations related to LSCA and has announced updates to the new chemicals program to reflect the full scope of chemical exposures, including worker exposures as identified in the law. On March 29, 2021, the EPA announced several instances where the approach under the Trump administration made assumptions related to worker exposures that did not ensure protections for human health and the environment.154 The agency has stopped issuing “not likely to present an unreasonable risk” findings based on a proposed Significant New Use Rule and will incorporate reasonably foreseen conditions of use when determining potential risks, including the absence of worker protections or the assumption that OSHA standards adequately protect workers. Additionally, EPA plans to use orders to mandate necessary worker protections as appropriate and collect additional safety information if needed to make a risk assessment.
Additional promising initial decisions by President Biden were to fill positions within the agency with people with a history of environmental justice, including Michal Ilana Freedhoff as the principal deputy assistant administrator for chemical safety and pollution prevention. Freedhoff was instrumental in the creation and passage of LSCA. This is a stark deviation from President Trump’s appointees, who were closely tied to the chemical industry—at least one of whom actively worked for the chemical industry to derail LSCA implementation, including Nancy Beck, Alexandra Dunn and Michael Dourson. With pressure from environmental, labor and public health groups, Dourson was not confirmed.
The passage of the LSCA has been a key opportunity to protect workers and the public from acute and chronic chemical exposures. Despite four years of an administration closely tied with the chemical industry, unions, public health professionals and other advocates worked to hold EPA accountable to its legislative mandate and to enhance coordination between EPA and OSHA for effective chemical regulation. This has happened through active engagement in the rulemaking process and litigation focused on EPA’s legislative mandate to assess and regulate toxic chemicals to protect workers as a vulnerable subpopulation. Biden’s first months in office brings a promise for LSCA to protect working people from dangerous chemicals and the enormous public health burden of work-related disease.
119 See who.int/health-topics/ebola/#tab=tab_1.
120 In May 2009, the California Occupational Safety and Health Standards Board adopted a Cal/OSHA standard on airborne transmissible diseases. The standard covers all airborne transmissible infectious diseases. It requires covered health care employers to develop infection control plans, to utilize engineering controls and appropriate personal protective equipment, to provide training for workers, and to develop and implement isolation plans for identified or suspected cases.
121 In April 2021, the New York state legislature passed the NY HERO Act, which would require the state to offer model prevention plans for airborne infectious diseases that private sector employers must implement. The bill is waiting to be signed by the governor, and the enforcement mechanism is unclear. The state OSHA plan in New York only covers public sector workplaces.
122 CDC, “Limiting Workplace Violence Related to COVID-19,” Sept. 1, 2020, available at cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/limit-workplaceviolence.html.
123 Tiesman, H.M., S. Konda, D. Hartley, et al., “Suicide in U.S. Workplaces, 2003–2010: A Comparison With Non-Workplace Suicides,” Vol. 48, Issue 6, pp. 674–682, June 2015, available at ajpmonline.org/article/S0749-3797(14)00722-3/abstract.
124 U.S. Merit Systems Protection Board, “Employee Perceptions of Federal Workplace Violence: A Report to the President and the Congress of the United States,”( 2012), available at mspb.gov/netsearch/viewdocs.aspx?docnumber=759001&version=761840&application=ACROBAT.
125 U.S. Department of Labor, OSHA, “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” April 2015, available at osha.gov/Publications/osha3148.pdf.
126 U.S. Department of Labor, OSHA, “Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments,” OSHA 3153-12R, 2009, available at osha.gov/Publications/osha3153.pdf.
127 U.S. Department of Labor, NIOSH, “Taxi Drivers: How to Prevent Robbery and Violence,” November 2019, available at osha.gov/sites/default/files/publications/OSHA3976.pdf.
128 U.S. Department of Labor, OSHA, “Enforcement Procedures for Investigating or Inspecting Workplace Violence,” CPL 02-01-052, Sept. 8, 2011.
129 U.S. Department of Labor, OSHA, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence,” CPL 02-01-058, Jan. 10, 2017.
130 U.S. Department of Labor, OSHA, “Regional Notice CPL 20-05 (04-01),” Oct. 1, 2019, available at osha.gov/sites/default/files/enforcement/directives/CPL_20-05_04-01.pdf.
131 U.S. Government Accountability Office, “Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence,” March 2016, available at gao.gov/products/GAO-16-11.
132 U.S. Occupational Safety and Health Review Commission, Secretary of Labor v. Integra Health Management, Inc., OSHRC Docket No. 13-1124, March 4, 2019, available at oshrc.gov/assets/1/18/Integra_Health_Management,_Inc._Docket_13-1124_Combined_post.pdf?8328.
133 Brief of the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae in Support of Complainant, Secretary Of Labor, OSHRC Docket No. 13-1124, Dec. 18, 2015.
134 “Labor Organizations Petitioning the U.S. Department of Labor for an OSHA Workplace Violence Prevention Standard for Healthcare and Social Assistance,” July 12, 2016, available at safetyandhealthmagazine.com/ext/resources/document-downloads/unions-petition.pdf.
135 “Workplace Violence Prevention in Health Care,” General safety orders, New Section: 3342,” effective April 1, 2017, available at dir.ca.gov/oshsb/Workplace-Violence-Prevention-in-Health-Care.html.
136 “Public Employer Workplace Violence Prevention Programs,” 12 NYCRR PART 800.6, effective June 7, 2006, available at https://labor.ny.gov/workerprotection/safetyhealth/PDFs/PESH/WPV/Workplace%20Violence%20Prevention%20Regulations.pdf.
137Wilson, M.P., D.A. Chia and B.C. Ehlers, “Green Chemistry in California: A Framework for Leadership in Chemicals Policy and Innovation,” California Policy Research Center, University of California, (2006).
138 Takala, J., P. Hämäläinen, K.L. Saarela, et al., (2014), “Global Estimates of the Burden of Injury and Illness at Work in 2012,” Journal of Occupational and Environmental Hygiene, 11:5, 326 –337, DOI: 10.1080/15459624.2013.863131.
139 Leigh, J.P., “Economic Burden of Occupational Injury and Illness in the United States,” The Milbank Quarterly, Vol. 89, No. 4, (2011).
140 Roundtable on Environmental Health Sciences, Research, and Medicine, Board on Population Health and Public Health Practice, Institute of Medicine, Washington, D.C., Oct. 2, 2014, available at nap.edu/catalog/18710/identifying-and-reducing-environmental-health-risks-of-chemicals-in-our-society.
141OSHA, Annotated PELs, available at osha.gov/dsg/annotated-pels/.
142 See osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=24990.
143 85 Fed. Reg. 53910. See federalregister.gov/documents/2020/08/31/2020-18017/occupationalexposure- to-beryllium-and-beryllium-compounds-in-construction-and-shipyard-sectors.
144 84 Fed. Reg. 41667. See govinfo.gov/content/pkg/FR-2019-08-15/pdf/2019-17450.pdf.
145 Congressional Research Service, “Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19,” (Updated April 27, 2021), available at crsreports.congress.gov/product/pdf/R/R46288.
146 See dli.mn.gov/business/workplace-safety-and-health/mnosha-compliance-differences-betweenminnesota- and-federal . 147See dir.ca.gov/dosh/DoshReg/5155Meetings.html.
148Safer Chemicals, Healthy Families v U.S. EPA, No. 17-72260 (9th Cir. Nov. 14, 2019).
149 Hoang A., K. Fagan, D.L. Cannon, et al., ”Assessment of Methylene Chloride–Related Fatalities in the United States, 1980–2018,” JAMA Internal Medicine, published online April 19, 2021, available at https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2778965.
150 See epa.gov/sites/production/files/2019-02/documents/2019-02- 19_methylene_chloride_rulemaking_litigation_-_nrdc_complaint.pdf.
151 See https://m.usw.org/news/media-center/articles/2020/august/USW-lawsuit-against-EPA.pdf.
152 See epa.gov/sites/production/files/2020-12/documents/hbcd_re_uaw_petition_1.pdf.
153See blogs.edf.org/health/2020/08/27/under-the-trump-epa-no-risk-to-workers-is-too-high-to-impede-anew- chemicals-unfettered-entry-into-the-market/.
154 See epa.gov/chemicals-under-tsca/important-updates-epas-tsca-new-chemicals-program.
What Needs To Be Done
Over the past 50 years, there has been significant progress made toward improving working conditions and protecting workers from job injuries, illnesses and deaths. Federal job safety agencies have issued important regulations on many safety hazards, silica, coal dust and other health hazards, strengthened enforcement and expanded worker rights. These initiatives undoubtedly have made workplaces safer and saved lives. But much more progress is needed.
The Trump administration worked to dismantle progress made, attacking longstanding workplace safety protections and the structures for issuing future protections for working people. The Trump administration carried out an assault on regulations—targeting job safety rules on beryllium, mine examinations and injury reporting, and cutting agency budgets and staff—and totally failed to lead and respond to the COVID-19 pandemic that the nation’s workers needed to survive and the nation needed to end.
The Democratic majority in the House of Representatives led to improved oversight, accountability and action on critical worker protections, and opportunities to oppose anti-worker attacks by the Trump administration. However, the Republican-controlled Senate blocked much-needed protections and reforms in job safety. Now with a democratic majority in all of Congress, there are more opportunities for action on long-needed worker protection legislation.
The election of President Biden brought promise and hope to a nation and world decimated by the COVID-19 pandemic, and to working people who have struggled for years under anti-worker policies that make their workplaces more dangerous. The new administration has had to take off running in the midst of a pandemic that has devastated working-age adults and has a massive agenda ahead of them. It takes much longer to fix a broken system than it does to dismantle it.
The pandemic exposed the regulatory safety and health structures that had been weakened over decades and exploited by the Trump administration. Job safety agencies need to be rebuilt, not only restored to the pre-Trump era, but in ways that reflect the most significant barriers to ensuring workers are protected and can fully exercise their rights. This requires a refocus of national attention, energy and action on the enormous role and impact these agencies play to provide workplace oversight and prevent the disease, injuries and death that plague working people across the country. After years of starved budgets, funding and staffing for job safety agencies, and decades of allocating an agency with a massive mission—OSHA—too few resources, there must be new dedication to substantially increase resources to protect workers, and address ongoing and emerging safety and health problems.
OSHA must immediately issue an emergency standard to protect workers from COVID-19. The agency needs to fully enforce this standard and other workplace safety laws by developing a proactive enforcement plan, fully investigating complaints, performing onsite inspections, issuing violations and penalties that reflect the size and scope of the real problem and that deter other employers, and ensure workers’ rights to report unsafe working conditions, refuse dangerous work and use their own PPE when not provided by the employer are supported by the agency as required by law. MSHA also must issue an emergency standard to develop a proactive plan to keep mine workers safe from COVID-19 hazards. OSHA must revive its rulemaking efforts on a permanent infectious disease standard, and swiftly issue a proposed permanent rule.
All workplace policies must recognize that employment is a significant determinant of health. Severe inequities in dangerous working conditions have created an unacceptable discrepancy in those who face the largest burdens of disease, injury and death because of their jobs. Initiatives to address the safety and health risks posed by changes in the workforce and employment arrangements must continue. There must be renewed, dedicated attention given to the increased risk of fatalities and injuries faced by workers of color and immigrant workers, aging workers and enhanced efforts to protect temporary and contract workers.
The Trump administration’s revisions to OSHA’s standard on electronic injury reporting must be reversed, with more of the data collected made publicly available, and the anti-retaliation protections for workers who report injuries fully enforced. The emergency response rulemaking to protect our first responders must be reignited after being placed on the back burner last year.
Workplace violence is a growing and serious threat, particularly to women workers and those in the health care and social services sectors. OSHA must develop and issue a workplace violence standard and the Senate should pass the Workplace Violence Prevention for Health Care and Social Service Workers Act to make sure this is done.
OSHA standards for chemical hazards are obsolete and must be updated. EPA must fully implement the new toxic chemicals reform law and coordinate with OSHA and NIOSH, taking action to address the risks to both the public and to workers.
In mining, MSHA must continue initiatives to focus increased attention on mines with a record of repeated violations and stronger enforcement action against mines with patterns of violations. The agency must fully enforce the coal dust rule and act swiftly on new rules on silica and proximity detection for mobile equipment. Congress must strengthen job safety laws to prevent tragedies like the Massey Upper Big Branch mining disaster. Improvements in the Mine Safety and Health Act are needed to give MSHA more authority to shut down dangerous mines and to enhance enforcement against repeat violators.
The Occupational Safety and Health Act now is 50 years old and is out of date. Congress must pass the Protecting America’s Workers Act to extend the law’s coverage to workers currently excluded, strengthen civil and criminal penalties for violations, and strengthen the rights of workers and their representatives. Improvements to update and strengthen the OSH Act’s anti-retaliation provisions are particularly needed, so workers can report job hazards and injuries, and exercise safety and health rights without fear. Congress must pass the Protecting the Right to Organize (PRO) Act so that workers can freely form a union without employer interference or intimidation, organize for safe jobs and hold employers and job safety agencies accountable.
The nation must renew its commitment to protect workers from injury, disease and death, and make this a high priority. We must demand that employers meet their responsibilities to protect workers and hold them accountable if they put workers in danger. Only then can the promise of safe jobs for all of America’s workers be fulfilled.
30-Year Comparison of Death on the Job, 1992–2021
Total rate (per 100,000 workers)
--Agriculture, forestry, fishing
Injuries and Illnesses4
Rate (per 100 workers)
Number, private industry
Median days away from work
Annual average employment
Full-time equivalent staff
Inspectors (federal and state)
Years to inspect (federal)
Inspectors per workers
1 : 54,952
1 : 82,881
Penalty for Serious Violation
National average (federal and state)6
Sources: AFL-CIO Death on the Job: The Toll of Neglect, April 1992. U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, Survey of Occupational Injuries and Illnesses, and Employment and Wages Annual Averages, 1992 and 2019. U.S. Department of Labor, Occupational Safety and Health Administration, Congressional Budget Justification, 2019. U.S. Department of Labor, Occupational Health Administration, IMIS and OIS databases, FY 2020.
1 The 2021 report published 2019 fatality data from the U.S. Bureau of Labor Statistics, Census of Fatal Occupational Injuries (CFOI).
2 In 1992, the U.S. Bureau of Labor Statistics initiated the Census of Fatal Occupational Injuries, which provided more complete data on the number and rate of work fatalities. The 1992 data first was released by the agency in October 1993.
3 Fatality rates for manufacturing, private industry were not reported by the Bureau of Labor Statistics for 2019 due to an update to its disclosure methodology that resulted in significantly fewer publishable data. www.bls.gov/iif/oshfaq1.htm#accessingourdata. In 2018, this job fatality rate was 2.2 per 100,000 workers.
4 Work injuries and illnesses are employer reported and have been shown to be a severe undercount—roughly one-third—of the true toll.
5 Due to the COVID-19 pandemic, safety agencies conducted fewer field operations and less enforcement. In 2019, this was 162 years.
6 National penalty data from AFL-CIO Death on the Job Report, 1993. Penalty data from the 1992 report was sourced from the Dayton Daily News and only included penalties related to fatal and serious injuries.
Sources and Methodology
Federal and State Plan OSHA COVID-19 Enforcement Data: The formal and nonformal complaints and inspection information comes from the OSHA Information System (OIS). OSHA provided federal and state COVID-19 complaint and inspection information for January 2020 to Feb. 28, 2021. Data on average penalties comes from the above-referenced OIS reports. We present the average penalty data as individual state penalties, federal OSHA state penalties, state plan OSHA state penalties and a national average of penalties. We calculate the average penalty numbers by dividing the total cost for serious penalties by the total number of serious violations. The national average includes penalty data from the District of Columbia and U.S. territories and protectorates: American Samoa, Guam, the Marshall Islands, Puerto Rico and the Virgin Islands.
The complaints by industry information comes from the federal OSHA COVID-19 Summary Response webpage that is updated daily (federal business days). Percentage of complaints with inspections open were calculated using the number of investigations open divided by the total number of reported cases for both complaints and combined referrals.
Industry and Occupation COVID-19 Infection Data: There is no national mandatory reporting system for any industries or occupations other than nursing home facilities, and state data are limited. All workplace COVID-19 infection and fatality data presented were collected through multiple sources, and the data have many limitations likely resulting in a severe undercount.
The CDC provides state and local health departments with a Persons Under Investigation (PUI) recommended reporting form for COVID-19 cases. (cdc.gov/coronavirus/2019-ncov/downloads/pui-form.pdf). Utilization of the form by the states is voluntary, and many states do not use it to report case information. Other states use the form; however, they do not use all of the nonmandatory fields, including employment information. The form was updated on May 5, 2020, to provide additional information on employment—a field now indicates only if the individual was a health care worker or not—and includes nonmandatory fields to capture information on the source/location of exposure of all cases, including the workplace. The fields do not specifically collect industry, occupation or the place of employment.
Nursing Home Facilities: The Centers for Medicare and Medicaid Services provides a public database of CDC’s National Healthcare Safety Network (NHSN) system–COVID-19 Long Term Care Facility Module, including Resident Impact, Facility Capacity, Staff & Personnel, Supplies & Personal Protective Equipment, and Ventilator Capacity and Supplies Data Elements. Since May 17, 2020, nursing homes have been required to report this information weekly and it is updated on their website weekly with a lag period. Nursing homes may have voluntarily provided information from Jan. 1, 2020, to May 17, 2020, but data during this time are limited. Reinfection data started being reported on Dec. 12, 2020. Data submitted, particularly during the first few weeks of the required reporting period in May, are subject to fluctuations as facilities learned to use the new reporting system. Additionally, the availability of testing may impact the number of confirmed COVID-19 cases that facilities report.
Food Industry: The federal government does not provide any information on COVID-19 infections within the food industry. The Food and Environment Reporting Network (FERN) reports known infections, deaths and outbreaks within the meatpacking, food processing and farming industries using the best available case and death counts among food system workers, and avoids figures that count workers’ close contacts or relatives in the cumulative total of cases and deaths associated with a facility. Data presented from FERN primarily are collected from local news reports, with additional information gathered from state health authorities and, on occasion, from companies with outbreaks. The presented data have been updated every weekday since April 22. The data include CDC reports that examine meatpacking outbreaks in 23 states. In instances where local reports reflected higher numbers than the Centers for Disease Control and Prevention, the local reports were used. Where nonprecise figures were available (e.g., “405 workers were tested and approximately 50% of the tests were positive”), the calculated caseload is rounded down in the interest of accuracy. The total case, death and facility counts also include cumulative figures from states, counties and regions where available (e.g., “Smith County has 1,000 cases among farm workers at 10 farms”).
Health Care Personnel: The CDC publicly reports total cumulative COVID-19 cases and deaths among health care personnel gathered from reported PUI forms returned by states. The data are updated daily (federal business days). As the health care worker and employment fields are voluntary on the PUI reporting form, only approximately 20% of forms returned have this information completed. The form does not ask for specificity on the type of health care worker.
Correctional Facilities: The CDC publicly reports state-by-state data on COVID-19 resident and staff infections and deaths, and facility outbreaks. Data are reported by the state Department of Corrections and the Federal Bureau of Prisons. The data are cumulative starting on March 31, 2020, and are updated daily. The UCLA Law COVID-19 Behind Bars Data Project is an additional source of COVID-19 outbreak information for correctional facilities. https://law.ucla.edu/academics/centers/criminal-justice-program/ucla-covid-19-behind-barsdata-project
Employment and Establishment Data: Employment and Wages, Annual Averages, 2019, Bureau of Labor Statistics, U.S. Department of Labor.
Coverage of State and Local Employees: OSHA coverage of state and local employees depends on whether the state has adopted and runs its own OSHA program. States that run their own OSHA programs are required, as a condition of gaining federal approval, to cover state and local employees. The OSH Act does not cover public employees in the 24 states and Washington, D.C., that do not run their own OSHA programs. Statistics on the number of state and local employees are from Employment and Wages, Annual Averages, 2019, Bureau of Labor Statistics, U.S. Department of Labor.
Workplace Fatality Information: Census of Fatal Occupational Injuries, 2019, Bureau of Labor Statistics, U.S. Department of Labor. Rate reflects fatalities per 100,000 workers.
Private Sector Injury and Illness Data: Survey of Occupational Injuries and Illnesses, 2019, Bureau of Labor Statistics, U.S. Department of Labor. Rates reflect injuries and illnesses per 100 workers.
Inspector Information: The number of federal OSHA inspectors comes from OSHA’s Directorate of Enforcement Programs records and reflects the number of inspectors, excluding supervisors and discrimination complaint inspectors. For the state-by-state profiles, we include the number of inspectors for the state in which the area office is located. Inspector data for state plan states come from OSHA's Directorate of Cooperative and State Programs, and reflects the number of “on board” inspectors included in the states’ FY 2021 state plan grant applications. The number of “on board” inspectors may not accurately reflect the true number of inspectors that are hired and in place conducting enforcement inspections due to possible budgetary and staffing changes in individual states. National total for inspectors includes inspectors from Puerto Rico and the Virgin Islands.
Inspection Information: The number of inspections comes from the OSHA Information System (OIS). OSHA provided federal and state inspection information for FY 2020. Beginning in FY 2020, federal agency enforcement data was provided by OSHA from the OSHA Information System.
Penalty Information: Data on average penalties comes from the above-referenced OIS reports. We present the average penalty data as individual state penalties, federal OSHA state penalties, state plan OSHA state penalties and a national average of penalties. We calculate the average penalty numbers by dividing the total cost for serious penalties by the total number of serious violations. The national average includes penalty data from the District of Columbia and U.S. territories and protectorates: American Samoa, Guam, the Marshall Islands, Puerto Rico and the Virgin Islands.
The Length of Time It Would Take for OSHA to Inspect Each Establishment Once: This information is calculated separately for each federal OSHA state, each state plan OSHA state, the average for federal OSHA states, the average for state plan OSHA states and the national average for all states for one-time inspections. We obtain establishment data from Employment and Wages, Annual Averages, 2019, at bls.gov/cew/cewbultncur.htm.
For individual federal OSHA states, we divide the total number of private-industry (except mines) plus federal establishments by the number of inspections per federal OSHA state.
For individual state plan OSHA states, and for Connecticut, Illinois, Maine, New Jersey and New York, we divide the total number of private-industry (except mines) plus federal, state and local establishments by the number of federal inspections plus the number of 18(b) state inspections per state. (Federal OSHA conducts a limited number of inspections in state plan states, presumably in federal facilities and maritime operations, for which state OSHA programs are not responsible. We include these inspections and establishments in the state profiles). The national average includes inspection data from American Samoa, the District of Columbia, Guam, the Marshall Islands, Puerto Rico and the Virgin Islands.
For the average of federal or state plans to inspect establishments one time, we add the total number of establishments for individual federal or state plan states together and then divide by the total number of federal or state inspections, respectively. For this calculation, we consider Connecticut, Illinois, Maine, New Jersey and New York as federal states.
For the national average for one-time inspections, we divide the total number of establishments for both federal states and state plan states by the total number of federal and state inspections.
NOTES: Due to the revised recordkeeping rule, which became effective Jan. 1, 2002, the estimates from the 2002 BLS Survey of Occupational Injuries and Illnesses are not comparable with those from previous years. Among the changes that could affect comparisons are: Changes to the list of low-hazard industries exempt from recordkeeping; employers no longer are required to record all illnesses regardless of severity; a new category of injuries/illnesses diagnosed by a physician or health care professional; changes to the definition of first aid; and days away from work are recorded as calendar days.
Beginning with the 2003 reference year, both the Census of Fatal Occupational Injuries and the Survey of Occupational Injuries and Illnesses began using the 2002 North American Industry Classification System for industries and the Standard Occupation Classification system for occupations. Prior to 2003, the surveys used the Standard Industrial Classification system and the Bureau of the Census occupational classification system. The substantial differences between these systems result in breaks in series for industry and occupational data. Therefore, this report makes no comparisons of industry and occupation data from BLS for years beginning with 2003 and beyond with industry and occupation data reported by BLS prior to 2003.