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Law360 (April 30, 2020, 6:19 PM EDT ) U.S. Labor Secretary Eugene Scalia responded Thursday to the AFL-CIO president's claim that the Department of Labor is failing to adequately respond to the novel coronavirus, insisting "the cop is on the beat" and that painting the agency as uninterested in safety deceives workers and employers alike.
Labor Secretary Eugene Scalia discusses reopening the country at a roundtable with industry executives in the White House on Wednesday. (AP)
OSHA has conducted thousands of investigations and provided guidance about how employers should promote social distancing, maintain proper sanitation and hand-washing facilities and implement other infection-prevention measures, the labor secretary pointed out.
"I appreciate that you may want different actions from OSHA, but to obscure the guidance OSHA has given, and to suggest OSHA is indifferent to worker protection and enforcement, is to mislead employers about their duties and workers about their rights," Scalia wrote.
Trumka sent a blistering letter to Scalia on Tuesday, calling the DOL boss' response inadequate and saying "too many employers are disregarding safety and health standards and their general duty obligation to protect workers against recognized hazards."
Those criticisms have been echoed by workers' advocates and Democratic lawmakers, who urged Scalia on Wednesday to issue emergency infectious disease rules and withdraw "harmful" guidance that gives employers a pass on reporting COVID-19 cases. Last week, the U.S. House of Representatives and U.S. Senate introduced companion bills to require OSHA to issue the emergency temporary standard that would legally require all employers to adopt infectious disease plans.
David Michaels, an epidemiologist who headed OSHA during the Obama administration, said "one of the reasons things have gotten so bad for workers is the failure of the administration to issue and enforce regulations that protect workers."
But any assertions that OSHA's nonbinding guidance doesn't hold employers' feet to the fire when it comes to compliance is false, Scalia wrote Thursday. To suggest otherwise risks making employers think they don't have to comply with OSHA's existing standards for respiratory protection, personal protective equipment and sanitation, his letter said.
Scalia also took aim at growing calls for him to instruct OSHA to issue an emergency temporary standard making employers develop workplace infection control plans, implement work practice controls like social distancing and provide proper sanitation and personal protective equipment to limit the virus's spread.
"But employers are implementing measures to protect workers, in workplaces across the country," Scalia said, adding that an emergency standard would "add nothing."
Guidance tailored to specific industries is more valuable than the suggested rule given the constantly evolving nature of the pandemic and the fact that the pandemic is not a hazard unique to the workplace, according to Scalia.
"This by no means lessens the need for employers to address the virus," he said. "But it means that the virus cannot be viewed in the same way as other workplace hazards."
Scalia and OSHA have said they have no intentions of imposing new regulations.
The National Employment Law Project recently reported that OSHA is operating with the lowest number of inspectors in 45 years — only 862 at the beginning of the year — lower than the 952 inspectors at the end of the Obama administration and 1,469 in 1980.
"At this staffing level, it would take the agency a whopping 165 years to inspect each workplace under its jurisdiction just once," the report stated.
But according to data recently released by OSHA, there has been an uptick in federal inspections opened across the country, with 105 inspections with fatality or catastrophe classifications as of April 28.
The COVID-19 Response Summary from OSHA's website also states that as of April 28, the agency received 2,884 coronavirus-related federal complaints and closed 1,831 of them. As for the state programs, the report said, 7,408 complaints were received and 2,215 were closed.
On a call last week with reporters, OSHA's principal deputy assistant secretary, Loren Sweatt, said the DOL received about 2,400 coronavirus-related complaints from the start of February through April 20 and has resolved about 1,400 of them.
Scalia said Thursday that contrary to the criticism, the entire department is committed to protecting workers.
"Secretary Scalia just doesn't get it or worse, doesn't want to," AFL-CIO Communications Director Tim Schlittner said in an email.
--Editing by Jack Karp.
Update: This article has been updated with comment from the AFL-CIO.
For a reprint of this article, please contact reprints@law360.com.
