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OSHA takes a limited role protecting workers in pandemic

A butcher processes meat at Vincent's Meat Market in the Bronx borough of New York City on April 17.

President Donald Trump has declared that meat processing businesses are "critical infrastructure." David Dee Delgado/Getty Images

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The health and safety of many essential workers has been called into question by the COVID-19 pandemic, with meat processing workers in the spotlight as President Donald Trump signed an executive order Tuesday declaring the businesses “critical infrastructure.” Several meat packing facilities have become coronavirus hotspots — thousands of workers have become sick and 20 have died, according to the United Food and Commercial Workers International Union.

Keeping the labor force safe is the mandate of the Occupational Safety and Health Administration, but the agency has taken a limited role during the pandemic.

The most important function of OSHA, according to its former head, David Michaels, who served in the Obama administration, is setting standards — rules that employers must follow. For instance, at the height of the AIDS crisis, the agency issued standards for bloodborne pathogens, which included the safe disposal of needles in health care facilities.

“As a result of that standard, every hospital room, every doctor’s office has a sharps container,” he said, referring to the secured boxes for discarded needles.

But it usually takes years of study and debate to come up with those rules. When there’s no time to waste, like in a public health emergency, the agency has the power to set temporary emergency standards.

OSHA hasn’t done that yet. While it has put out workplace guidelines that essentially say to follow the recommendations of the Centers for Disease Control and Prevention, those aren’t legally binding like OSHA standards usually are, said Debbie Berkowitz with the National Employment Law Project.

“CDC guidance is advisory,” she said. “It’s voluntary. Employers do not have to follow it. They can choose to ignore it.”

Regardless of specific standards, under federal law all employers are legally obligated to provide a workplace “free from recognized hazards,” said John Henshaw, who headed OSHA during the George W. Bush administration.

But when it comes to COVID-19, he said, “This is all new for everybody, so it’s kind of hard to argue it was a known hazard and you should have done something about it.”

When employers are suspected of violating OSHA standards, they’re subject to inspections and then citations. But the number of inspectors who enforce rules is limited, said Ann Rosenthal, a former top lawyer for the agency.

“It would take 165 years for them to get to every workplace in the country,” she said.

Inspections can be triggered by employee complaints. OSHA has received thousands of those since the pandemic began but has issued no citations to employers so far and has announced the agency will be limiting inspections to the highest-risk priorities like health care facilities.

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