The Trump administration announced Friday afternoon that employers outside of the health care industry generally won’t be required to record coronavirus cases among their workers, a decision that left some workplace safety advocates incredulous.
COVID-19, the disease caused by the coronavirus, is classified as a recordable illness, meaning employers would have to notify the Occupational Safety and Health Administration when an employee gets sick from an exposure at work. But the nation’s top workplace safety agency now says the majority of U.S. employers won’t have to try to determine whether employees’ infections happened in the workplace unless it’s obvious.
“OSHA is kidding, right?” tweeted David Michaels, who helmed OSHA throughout the presidency of Barack Obama.
It is not a joke. OSHA, which is part of the Labor Department, released an enforcement memo Friday spelling out the recording rules.
Employers in health care, emergency response and corrections would have to inform the agency when they become aware of a COVID-19 case that probably resulted from work. But other entities would not have to do so unless there was “objective evidence” that the transmission was work-related, or there was evidence “reasonably available to the employer” ― for example, if a whole slew of people who work right next to each other got sick.
The rationale: Those employers outside of health care “may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work,” the memo stated.
But if employers don’t have to try to figure out whether a transmission happened in the workplace, it could leave both them and the government in the dark about emerging hotspots in places like retail stores or meatpacking plants.
“So all you infected bus drivers, grocery store clerks, poultry processors ― you didn’t get it at work,” tweeted Jordan Barab, a former OSHA official now with the House Committee on Education and Labor.
Debbie Berkowitz, a worker safety expert at the National Employment Law Project, told HuffPost in an email that the implications of the guidance are larger than they seem. She said it would lead employers outside of health care to “not consider any of these [infections] work-related and therefore something they can prevent.”
“This is despicable and will lead to more cases among workers and the public,” she said in an email. “[OSHA] should be requiring employers to keep workers six feet apart, provide double cotton layer masks, hand sanitizers throughout facilities, [and] time to wash hands with soap and water.”
The announcement is part of an ongoing fight between the Trump administration and occupational safety experts who say OSHA is failing to fulfill its obligations under the president. Employer record keeping has been a key issue in that spat. Early in his presidency, Donald Trump loosened the recording requirements employers must follow, a move critics said would make it easier for companies to fudge their data and hide their injuries.
Safety advocates say recording injuries and illnesses like COVID-19 helps officials discover growing hazards and shape sound public policy to address them. The Labor Department, under Trump and Labor Secretary Eugene Scalia, has portrayed those kinds of employer obligations as burdensome red tape.
In its memo on COVID-19 recording, OSHA said that by not enforcing the requirement on most employers, the agency would “help employers focus their response efforts on implementing good hygiene practices in their workplaces, and otherwise mitigating COVID-19’s effects, rather than on making difficult [work-related] decisions in circumstances where there is community transmission.”
The Labor Department and OSHA in particular have drawn a lot of heat for their response to the coronavirus pandemic. Labor unions have been asking Scalia to issue an emergency standard for infectious disease, which would would give health care facilities clear, enforceable standards to protect their workers during the pandemic.
Scalia hasn’t done that. Instead, OSHA has created a new poster for employers with tips on preventing infections, and tweaked the rules around respirators to help employers deal with a shortage.
A Labor Department spokesperson defended the agency’s work responding to the outbreak, saying in an email to HuffPost Friday that it had taken “swift and direct action to protect America’s workers.”
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