Dear Secretary Scalia:
On this Workers Memorial Day, I am writing on behalf of the 12.5 million members of the AFL-CIO and all working women and men to call upon you and the U.S. Department of Labor to take immediate action to protect the safety and health of workers from exposure to COVID-19 on the job. This letter is in memory of our union brothers and sisters who have passed away from COVID-19, along with the 275 workers who pass away from other work-related injuries and illnesses each day. See Appendix A for a list of some of many union members who we are mourning.
Health care workers and first responders on the frontlines of the COVID-19 response, other essential workers who remain on the job1, and those workers returning to work face great danger from exposure to the virus. Immediate action is needed to protect these workers as they work to respond to this public health emergency. Protecting our nation’s workers from COVID-19 is a prerequisite for defeating this virus and reopening our economy. Our communities will only be safe if our workplaces and workers are safe.
Since this crisis began, the Department of Labor and federal government have failed to meet their obligation and duty to protect workers; the government’s response has been delinquent, delayed, disorganized, chaotic and totally inadequate.
Workers have been left in harm’s way, paying the price with their lives and their health. Millions of private and public sector workers in health care, emergency services, corrections, transportation, food processing, retail, grocery, warehousing, mining, manufacturing, construction and other industries face exposure to COVID-19 on the job; tens of thousands have been infected and hundreds have died.
Health care workers, overwhelmed by the surge in critically ill patients, lack necessary safety protocols and personal protective equipment (PPE)—including adequate respiratory protection—putting them at great risk of exposure and infection. As of April 23, 2020, the U.S. Centers for Disease Control and Prevention (CDC) reported that 21,804 health care workers had been infected by COVID-19 and 71 had died, a gross undercount of the true toll due to very limited reporting.2 In New York City, more than 80 transit workers now have died and thousands have been infected.3,4 Across the country, COVID-19 is spreading like wildfire through meat processing and poultry plants—infecting thousands of workers, disrupting production and putting other workers and communities at serious risk. Unions representing postal workers, letter carriers, corrections officers, teachers, urban transit workers, flight attendants, utility workers, factory workers, construction workers are all reporting widespread infections and deaths among their members.5
Minority workers and low wage workers are particularly at great risk. Data collected by the states and CDC show that Blacks and Latinos are suffering from much higher rates of COVID-19 infections and deaths than others.6 Blacks and Latinos make up a large proportion of many occupations of essential workers, particularly those working in jobs with close contact with the public or in crowded conditions. These groups also suffer from other health conditions and lack access to necessary health care that put them at even greater risk of serious illnesses and death from COVID-19 infections.
For all workers, the toll of COVID-19 infections and deaths is mounting and will increase even more rapidly as workers return to work without necessary safety and health protections.
As we face the greatest worker safety challenge and crisis of our lifetime, the U.S. Department of Labor, the Occupational Safety and Health Administration and Mine Safety and Health Administration are missing in action.
DOL has refused to grant union petitions to issue emergency standards to protect workers and miners from COVID-19, claiming that standards are not needed. At the same time, both OSHA and MSHA are failing to use their authority to enforce existing standards and the job safety laws to protect workers from workplace exposure to COVID-19. Two days ago on April 26, 2020, OSHA and CDC jointly issued interim COVID-19 guidance for meat and poultry processing employers and workers.7 However, these are only voluntary guidelines, and according to the agencies, impose no obligations on employers to comply.
Without government oversight and enforcement, too many employers are disregarding safety and health standards and their general duty obligation to protect workers against recognized hazards that threaten workers’ health and safety. Workers’ lives are being treated as expendable. In many workplaces, workers face dangerous conditions that pose an imminent danger to their safety and health. Workers who raise safety and health concerns are being disciplined, threatened and in some cases fired for exercising their right to ask for protections afforded by the Occupational Safety and Health Act. Workers also are being disciplined for wearing their own PPE when their employers do not provide adequate levels of protection to be safe on the job.
Instead of taking action to strengthen worker safety protections, the U.S. Department of Labor has rolled back and weakened protections:
On April 10, 2020, OSHA suspended the requirement for employers to identify and record work-related COVID-19 infections for most essential workers.8 The enforcement memorandum issued by the agency advises employers they are not obligated to comply with OSHA’s injury and illness recordkeeping regulations (29 CFR 1904) to determine if COVID-19 infections are related to work, unless there is “objective evidence” that the infection is work-related, and the evidence is available to the employer. This reckless, irresponsible action by OSHA comes as COVID-19 infections among essential workers are exploding, with thousands of work-related cases among these workers being reported by public health agencies and the media. Under this policy, employers will not have to identify those workers exposed and infected at work; these infections will not be documented or investigated—the first step in prevention—putting even more workers at risk and leading to more infections, illnesses and deaths in our workplaces and communities.
On April 13, 2020, months after the U.S. COVID-19 outbreak began, OSHA issued the “Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19).”9 In the health care industry and other settings where workers face a high or very high risk of transmission, OSHA’s plan provides for some limited onsite inspections at the discretion of the area director in response to worker complaints and referrals. This is an improvement over OSHA’s earlier practice where, instead of conducting onsite inspections for COVID-19 complaints, OSHA had been only conducting informal investigations through phone calls and letters to employers that resulted in no enforcement action. However, it is overdue for the health care settings—issued weeks after hospitals around the country have been overwhelmed with COVID-19 cases, with many hospitals failing to implement necessary infection control measures and procedures and health care workers lacking necessary types of respiratory protection and other PPE. As a result, thousands of health care workers have been infected and dozens have died.
For other essential workers who are not in health care settings, OSHA’s COVID-19 enforcement response plan is totally deficient, abandoning workers in meatpacking, poultry, grocery, transportation and other critical industries where work has continued during this national emergency. Instead of conducting workplace inspections as required by the Occupational Safety and Health Act, OSHA plans to treat all worker complaints and referrals in these sectors as informal complaints, and respond with a phone call or letter to the employer with no citations for violations that pose a serious threat to workers. This voluntary approach strips workers of their legal right to seek and receive a worksite inspection by OSHA. It sends the message to employers that they are not required to take strong preventive actions to protect workers from COVID-19, leaving workers exposed and at risk of infection.
In addition, OSHA has issued other enforcement memorandums, which should be entitled “non-enforcement memorandums,” that suspend or relax employers’ existing obligations. The April 3, 2020 enforcement memorandum tells employers they should make a good faith effort to follow respiratory protection requirements, but essentially directs employers to use cloth face coverings instead of respirators that have an adequate level of protection, without fear of citation.10 Other memorandums relax requirements for employers to provide annual fit testing of respirators and to comply with mandated medical screenings, training, audits, assessments, inspections and safety certifications, further weakening protections for workers against all hazards.11,12,13 These memorandums lay out for employers what they do not have to comply with or will not be responsible for, rather than lay out what they must do under their obligations of the law with federal oversight.
To date, limited urgent enforcement actions have been taken by federal OSHA to address the imminent danger faced by our frontline workers. Months into the outbreak, OSHA has finally started to narrowly inspect some hospitals and nursing homes. Despite reports by health care workers of violations of multiple standards including respiratory protection (1910.134), personal protective equipment (1910.132), eye and face protection (1910.133), sanitation (1910.141) and hazard communication (1910.1200), OSHA has yet to issue any citations.
The Department of Labor, OSHA and MSHA must change course. With utmost urgency, we call upon you to use the full authority and resources of the U.S. Department of Labor to protect workers from exposure to COVID-19 and immediately take the following actions:
Issue emergency temporary standards to protect health care workers, first responders, essential workers and other workers returning to work from COVID-19 exposure and infection.
It is especially clear now that exposures at work pose a serious and often grave risk to our frontline health care workers and emergency responders, and to workers in many other occupations with close contact with the public and other co-workers. Every person showing up to work during this pandemic must be protected from COVID-19 exposure on the job. OSHA and MSHA must use their authorities under 29 U.S.C. 655(c) and 30 U.S.C. 811(b) to issue emergency standards to protect workers from the grave danger posed by this deadly new workplace hazard. The standards must require all employers to develop and implement a workplace infection control plan specific to the workplace that includes an exposure risk assessment; engineering and administrative and work practice controls (including social distancing); respiratory protection and other PPE; sanitation and cleaning; medical removal and wage protection for COVID-19 infected and exposed workers; and training and education.
These emergency standards must reflect the precautionary principle—that in the face of a novel virus, employers must not wait for scientific certainty of harm before implementing precautions to protect workers—and be based on the currently available science. In particular, OSHA and MSHA emergency standards must base worker protection requirements on the growing scientific evidence that SARS-CoV-2 is transmitted via airborne, in addition to droplet and contact routes, and must account for the evidence indicating the significant role asymptomatic and presymptomatic infections play in transmission.
These standards are critical to provide both employers and workers clear and comprehensive direction from the federal government on the measures that are needed and required to protect workers from this new and grave workplace hazard.
Fully, aggressively and expeditiously enforce existing OSHA standards, regulations and employers’ general duty obligation to protect workers from recognized hazards, including exposure to COVID-19.
OSHA must recall, strengthen and reissue the Interim Enforcement Response Plan for Coronavirus Disease to provide for strong enforcement for health care workers, essential workers and other workers returning to work to protect them against workplace exposure to COVID-19. The revised updated enforcement plan must outline mandatory onsite inspections in response to worker complaints alleging serious safety and health violations and citations for violations of OSHA standards, injury recordkeeping and reporting regulations, and the general duty clause. Health care settings, other high risk workplaces where there is close contact with the public and/or among co-workers, and workplaces where outbreaks are occurring (including those occurring in “lower risk” industries) must be prioritized for onsite inspections. Other workplaces should receive onsite inspections for COVID-19 complaints as resources permit.
The plan must provide for clear guidance and direction to compliance officers on the conditions and practices that constitute, and should be cited as, violations of the general duty clause, including an employer’s failure to implement workplace protections that reflect the precautionary principle and currently available scientific evidence about SARS-CoV-2 transmission and worker protection measures mandated under state emergency actions and orders. OSHA should immediately issue an industry specific compliance directive for meat and poultry processing that specifies that failure to comply with OSHA and CDC guidelines on COVID-19 constitutes a violation of the general duty clause, subject to enforcement. Under any general duty, OSHA enforcement practices should rely on these other forms of guidance as the floor level of protection, not the ceiling. Even though OSHA has up to six months to issue citations, this national emergency calls for swift enforcement action by the agency so that hazards can be corrected immediately, lives can be saved and the virus can be defeated. Six months from now will be too late.
Utilize OSHA’s full authority to expand its enforcement of safety and health requirements.
Sections 8 and 9 of the Occupational Safety and Health Act authorize OSHA to enforce the law though both inspections and investigations and to issue citations for violations that are identified through either means. Yet OSHA has relied almost exclusively upon onsite inspections as the mechanism to identify and document violations. The agency’s informal complaint investigation procedures and rapid response investigations of severe injury reports have not resulted in citations in the absence of an onsite inspection. We urge you to overhaul and strengthen OSHA’s investigation policies and procedures to utilize off-site investigations to fully enforce the law, including the issuance of citations for violations, as a supplement to onsite inspections.
At the same time OSHA is responding to the COVID-19 pandemic, the agency must maintain strong oversight and enforcement to protect workers who remain on the job from other safety and health hazards that pose a risk of injury, disease or death. This will become even more urgent as workplaces reopen, processes are restarted and more workers return to work.
Require employer recording and reporting of all worker COVID-19 infections and deaths.
OSHA must immediately rescind the April 10, 2020 memorandum on Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) that removed the obligation for most employers to determine if COVID-19 cases are related to workplace exposures. Instead, the agency must maintain and strengthen its injury and illness recording and reporting requirements (29 CFR 1904) for COVID-19.
The AFL-CIO calls upon the agency, through interpretation or an interim final rule, to deem all COVID-19 infections and deaths among workers in occupations and sectors at high risk of COVID-19 exposures to be presumed to be work-related and recorded on the OSHA 300 log, unless there is objective evidence available to the employer that the case is not related to work. This must include health care, emergency services, corrections, law enforcement, meat and other food processing, grocery, transit workers and others who work in close contact with potentially infected individuals, members of the public or other co-workers.
In addition, the agency should issue an interim final rule that requires all employers to maintain a COVID-19 log of all worker infections and deaths from COVID-19, whether or not they are determined to be work-related, and to report them to OSHA within 24 hours. This is similar to OSHA’s requirement to maintain a sharps injury log for all needle stick injuries (1910.1030(h)(5)). This would provide critical information to employers, workers, OSHA and public health authorities on COVID-19 infections among workers and would be utilized for contact tracing, exposure assessment and implementation of preventive measures to limit exposures and future infections.
It would also help identify workplaces at high risk of infection, in order to intervene quickly, to stop the spread of infection to other workers and the community before the outbreak is out of control.
Protect workers from employer retaliation for taking action to protect themselves and co-workers from COVID-19.
The Occupational Safety and Health Act and many other whistleblower protection laws enforced by OSHA prohibit employers from retaliating against workers for raising safety and health concerns and exercising their rights under the law.14 We acknowledge and appreciate your public statements to re-enforce this important right. But we call upon you to fully enforce workers’ rights to be protected from retaliation. Specifically, we ask OSHA to issue an enforcement directive that establishes DOL policy that Section 11(c) of the OSH Act and other whistleblower statutes enforced by DOL prohibit employers from retaliating against workers for raising safety and health concerns with their employers, a government agency, on social media, or in the press. In addition, the U.S. Department of Labor must make clear that workers are permitted to utilize their own PPE, including adequate levels of respiratory protection, to protect against COVID-19 exposures, and cannot be disciplined or retaliated against for using such equipment. Those who are exposed or test positive must be protected and the right of workers to refuse to engage in work that poses an imminent danger to their health or safety must also be re-enforced. The Department of Labor must quickly investigate all complaints of employer retaliation against workers who take action to protect themselves and co-workers from COVID-19, and take aggressive enforcement action to protect these workers.
Protect the nation’s miners from workplace exposure to COVID-19.
During this pandemic, our nation’s miners remain on the job facing serious and unique risks from exposure to COVID-19 in addition to the serious safety and health hazards faced in mining jobs. Underground miners work in close proximity to each other, traveling on mantrips, working in confined spaces, operating the same equipment and sharing common shower facilities. Many miners are older and suffer from underlying work-related health conditions such as black lung and silicosis, putting them at high risk of serious illness from COVID-19 infections. Moreover, miners often reside in rural areas without access to health care facilities with the capacity to treat and care for individuals with serious illnesses, including COVID-19.
MSHA must take immediate action to issue an emergency standard or safeguard to require mine operators to limit contact between miners, implement engineering and administrative controls, provide PPE, enhance sanitation, cleaning and disinfection and provide medical removal and wage protection for all COVID-19 infected and exposed miners. MSHA must also require mine operators to immediately report all COVID-19 infections among miners to the agency and investigate these reports in order to prevent future workplace exposures. MSHA must also strongly enforce these and other mine safety requirements and CDC and state public health guidelines and orders, and protect miners from retaliation for speaking out and exercising their rights under the law.
Protect public sector workers.
State and local public sector workers serving on the frontlines during this outbreak face great risk from exposure to COVID-19 exposure on the job. They work in health care, emergency services, corrections and other high risk occupations and settings that bring them into close regular contact with the public. Under the OSH Act, safety and health protections for state and local public sector workers are provided under OSHA plans adopted by individual states, which are approved and overseen by federal OSHA. But adoption of state OSHA laws is voluntary, and more than 8 million public sector workers in 24 states lack OSHA coverage, with some of those workers unprotected by any state safety and health requirements.
Federal OSHA must coordinate and work with the states to ensure that state and local public employees are protected from COVID-19. OSHA must provide direction to and oversight of approved state OSHA plans to see that standards are enforced. For those states without approved state OSHA plans, federal OSHA should work with state and local authorities to incorporate applicable safety standards and guidelines for COVID-19 into enforceable state emergency orders.
Protect frontline OSHA and MSHA inspectors.
OSHA and MSHA inspectors need to be on the front lines inspecting workplaces to protect workers from COVID-19 and other workplace hazards during this pandemic. OSHA and MSHA inspectors must be provided the greatest level of safety and health protection in order to do their jobs in response to the outbreak. The U.S. Department of Labor must provide training, appropriate respiratory protection and other PPE, and hygiene supplies to inspectors and access to rapid, reliable COVID-19 testing. Medical removal with full wage protection must be provided to those who are infected with the virus or exposed without necessary protection.
Provide training and education for workers at risk of workplace exposure to COVID-19 and guidance and assistance to employers to protect workers and limit the spread of virus in workplaces and communities.
Workplace exposure to COVID-19 is a new grave safety and health hazard that all employers, workers, unions and safety and health professionals must address. Widespread training and education of workers and employers on the COVID-19 virus, workplace risks and control measures to prevent its spread is urgently needed. OSHA and MSHA should utilize existing training and education programs, including Susan Harwood Training Grants, OSHA Training Institute Education Centers and the National Mine Safety and Health Academy, to launch a major training and education initiative to protect workers from COVID-19. Similarly, OSHA should continue to provide guidance and assistance to employers and workers through industry specific recommendations and factsheets, updated to reflect the current and ongoing experience and scientific information, and utilize the compliance assistance and state consultation program to provide information and support to employers.
Work with the White House, the Federal Emergency Management Administration and the National Institute for Occupational Safety and Health to immediately and massively expand the supply and availability of personal protective equipment.
Several months into this outbreak, there still is a severe shortage of PPE to protect workers from COVID-19 and other workplace hazards. Health care workers on the front lines still lack the necessary respiratory protection and other PPE to be safe at work. Essential workers at high risk of exposure from the public or other co-workers have not been able to acquire enough certified equipment and are making due with whatever they can find. Many employers and unions in construction, manufacturing, utilities and other industries have donated respirators to health care personnel, and now face severe shortages or a total lack of equipment needed to protect workers from toxic substance exposures. The severe shortages and risks to workers will only grow more dire as the economy reopens, and more workers return to jobs and require respiratory protection and other PPE to protect their safety and health.
The federal government, with the full involvement of the U.S. Department of Labor, must launch a coordinated initiative to massively expand the supply and availability of adequate types of respiratory protection and other PPE to protect workers from COVID-19 and other workplace hazards. Working with unions, employers and equipment manufacturers, the government must identify PPE supply needs, effectiveness, inventory, and capacity and determine how to quickly expand production at both existing and new facilities, and fully utilize the Defense Production Act to get this done.
Work with the White House, FEMA, the Department of Health and Human Services, the CDC and the states to expand rapid coronavirus testing and make it readily available to workers at high risk of workplace exposures to COVID-19.
There is wide agreement that a massive increase in testing for COVID-19 is needed before the economy can be reopened. Testing must be readily available to identify asymptomatic and symptomatic individuals infected with the virus, followed by contact tracing and isolation of those infected and exposed to the virus. Health care workers and other workers at high risk of workplace exposures to COVID-19 must be prioritized for rapid and reliable COVID-19 testing in every state, with specific plans developed and implemented to provide testing to these high risk worker groups.
Working people in the country are courageously and selflessly serving on the frontlines to respond to the COVID-19 pandemic, caring for patients and providing essential services to the nation. They are doing their jobs under the most trying conditions. The U.S. Department of Labor and the entire federal government must act now and do their job and meet their responsibility and obligation to protect the safety and health of working men and women during this national emergency.
On this Workers Memorial Day, as we honor workers killed, injured and made ill on the job, the federal government and all of us must commit and take action to do everything within our power to stop the spread of this virus and protect working women and men from preventable injuries, illnesses and deaths.
Richard L. Trumka
1 Many groups of essential workers are at high risk from work exposures to COVID-19 due to close contact with infected individuals, members of the public and co-workers on the job, including, but not limited to, transit workers, corrections officers, law enforcement, meat and poultry processing, and grocery workers.
2 U.S. Centers for Disease Control and Prevention. Case Count Reported in Case-Based Surveillance for COVID-19, April 23, 2020.
3 Transport Workers Union of America. Personal communication. April 23, 2020.
4 National Public Radio. NYC Bus Operators Witness Loss Among Pandemic. www.npr.org/2020/04/24/842467752/we-ve-seen-a-lot-of-brothers-die-nyc-bus-operators-witness-loss-amid-pandemic. April 24, 2020.
5 AFL-CIO. In Memoriam: Union Members Lost to COVID-19. https://aflcio.org/covid-19/memoriam
6 CDC, COVID-19 in Racial and Ethnic Minority Groups, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html, Accessed April 25, 2020.
7 CDC and OSHA, Meat and Poultry Processing Workers and Employers, Interim Guidance from CDC and the Occupational Safety and Health Administration (OSHA), April 26, 2020. https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/meat-poultry-processing-workers-employers.html
8 U.S. Department of Labor, Occupational Safety Health Administration. Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19). www.osha.gov/memos/2020-04-10/enforcement-guidancer-ecording-cases-coronavirus-disease-2019-covid-19. Issued April 10, 2020.
9 U.S. Department of Labor, OSHA. Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID19).” https://www.osha.gov/memos/2020-04-13/interim-enforcement-response-plan-coronavirus-disease-2019-cov. Issued April 13, 2020.
10 U.S. Department of Labor, OSHA. “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” https://www.osha.gov/memos/2020-04-16/discretion-enforcement-when-considering-employers-good-faith-efforts-during. Issued April 16, 2020.
11 U.S. Department of Labor, OSHA. “Temporary Enforcement Guidance - Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak,” https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit. Issued March 14, 2020.
12 U.S. Department of Labor, OSHA. “Expanded Temporary Enforcement Guidance on Respiratory Protection FitTesting for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemic,” https://www.osha.gov/memos/2020-04-08/expanded-temporary-enforcement-guidance-respiratory-protection-fit-testing-n95. Issued April 8, 2020.
13 U.S. Department of Labor, OSHA. “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic,” https://www.osha.gov/memos/2020-04-03/enforcement-guidance-respiratory-protection-and-n95-shortage-due-coronavirus. Issued April 3, 2020.
14 Other key whistleblower laws that protect workers from retaliation for raising job safety concerns include the National Transit Systems Security Act (NTSSA) (2007) 6 U.S.C. § 1142, Federal Railroad Safety Act (FRSA) (2007) 49 U.S.C. § 20109, and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) (2000) 49 U.S.C. § 42121.