By Braden Campbell

Law360 (May 28, 2020, 6:06 PM EDT ) The Occupational Safety and Health Administration issued its first coronavirus-related citation "within the last week," the embattled head of the agency told lawmakers Thursday at a marathon House subcommittee hearing on OSHA's virus enforcement — or its alleged lack thereof.

Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt defended her office's preference for looser, industry-specific guidance over hard-and-fast rules at the House Workforce Protections Subcommittee hearing, which also saw several members of the Education and Labor Committee probe OSHA's approach to the pandemic.

OSHA's strategy allows the agency to adapt to the latest science on the fly and accounts for operational differences across business sectors in a way rigid requirements would not, Sweatt said. But that flexibility doesn't come at the expense of enforcement, despite what the raw numbers suggest so far, she said.

"We still have six months to complete any investigation or enforcement action, so I think relying on looking at citations is maybe not the best parameter here," Sweatt said. "Where we [investigate a complaint and] do not find an employer who is protecting their workers, we will enforce."

Sweatt's appearance Thursday comes after months of criticism over the Trump administration's approach to workplace safety during the pandemic. She and fellow witness John Howard, whose National Institute for Occupational Safety and Health sets the Centers for Disease Control and Prevention's safety recommendations, fielded questions from more than 20 lawmakers at the more than three-hour hearing.

Democratic lawmakers, unions and other workers' advocates have chided OSHA for not issuing an "emergency temporary standard" making employers implement certain safety measures or face fines, as the Occupational Safety and Health Act allows it to when "grave" workplace dangers arise. Last week, the AFL-CIO sued OSHA in the D.C. Circuit seeking an order making the agency issue an ETS.

Instead, the agency has issued a series of industry-specific recommendations — some more robust than others — and urged employers to follow CDC workplace safety guidance. The agency argues it can enforce these recommendations under a handful of existing rules and the OSH Act's general duty clause, which empowers OSHA to cite employers that don't protect workers from "recognized hazards."

Committee Democrats questioned this claim Thursday using the agency's enforcement data. OSHA had received about 4,500 complaints related to COVID-19 and closed close to 3,500 as of Wednesday, according to a section of its website detailing its virus response.

Sweatt disclosed the recent write-up in a line of questioning by Rep. Suzanne Bonamici, D-Ore., about the enforcement figures. Pressed on whether "these citations [can] be issued faster," Sweatt said "rushing to issue a citation" is not the best use of the agency's resources.

"We have to build a legal case to defend our citations … to issue a citation that is not legally defensible would be irresponsible on our part," Sweatt said. She disclosed the nature of the recent citation but it was not clearly audible, and OSHA representatives did not respond to a request for clarification. 

The agencies' use of guidance allows them to be more nimble, the officials added. Howard described guidance as "an easier pathway" than formal rulemaking after Rep. Bradley Byrne, R-Ala., asked about the relative difficulty of these approaches.

"When we learn something new, that guidance can be changed almost instantaneously," Howard said. For example, the agencies are mulling whether to add language on "establishment-level testing" to April joint guidance for the hard-hit meatpacking industry, he said.

Sweatt and Howard also compared their response to the COVID-19 pandemic to the Obama administration's handling of the swine flu outbreak in 2009. Rather than issue an emergency temporary standard, the Obama administration leaned on guidance and existing standards, Sweatt said.

"We have followed the H1N1 pandemic strategy almost to a T," she said.

Rep. Susan Wild, D-Pa., called that pandemic a "false comparator" later in the hearing Thursday.

"H1N1 killed fewer than 13,000 people in a year," she said. "COVID has killed 100,000 in four months."

--Additional reporting by Vin Gurrieri. Editing by Orlando Lorenzo.

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