Occupational safety and health, frontline workers, and the COVID-19 pandemic in the U.S.

Spieler, Emily A. Working Paper Occupational safety and health, frontline workers, and the COVID-19 pandemic in the U.S. ILO Working Paper, No. 92 Provided in Cooperation with: International Labour Organization (ILO), Geneva Suggested Citation: Spieler, Emily A. (2023) : Occupational safety and health, frontline workers, and the COVID-19 pandemic in the U.S., ILO Working Paper, No. 92, ISBN 978-92-2-039141-9, International Labour Organization (ILO), Geneva, https://doi.org/10.54394/JZZR6316 This Version is available at: https://hdl.handle.net/10419/278521 Standard-Nutzungsbedingungen: Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden. Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen. 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Spieler June / 2023 ILO Working Paper 92 Copyright © International Labour Organization 2023 This is an open access work distributed under the Creative Commons Attribution 4.0 International License (https://creativecommons.org/licenses/by/4.0/). Users can reuse, share, adapt and build upon the original work, as detailed in the License. The ILO must be clearly credited as the owner of the original work. The use of the emblem of the ILO is not permitted in connection with users’ work. Attribution – The work must be cited as follows: Spieler, E. , Occupational Safety and Health, Frontline Workers, and the COVID-19 Pandemic in the U.S., Geneva: International Labour Office, 2023 Translations – In case of a translation of this work, the following disclaimer must be added along with the attribution: This translation was not created by the International Labour Organization (ILO) and should not be considered an official ILO translation. 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Occupational Safety and Health, Frontline Workers, and the COVID-19 Pandemic in the U.S., ILO Working Paper 92 (Geneva, ILO). https://doi.org/10.54394/JZZR6316 01 ILO Working Paper 92 Abstract This Report on the U.S. occupational safety and health response to the pandemic was prepared as part of the ILO World Economic and Social Outlook (WESO) project that included a review of the protections provided to critical workers on the frontline of the pandemic in multiple countries. The Report provides an overview of U.S. occupational safety and health and related laws; traces the effects of the pandemic on workers in the U.S.; reviews the federal agencies’ responses to the risk of COVID-19 within workplaces; explores the variability among state responses to the occupational health threat; provides a summary of COVID-related workplace litigation brought by individuals and unions to expand workplace protections; and briefly outlines the social and economic supports provided to workers in the U.S. before and then during the pandemic. The Report concludes with an analysis of the U.S. response to the coronavirus public health crisis within workplaces. About the author Professor Emily Spieler (Northeastern University School of Law, Boston, Massachusetts) is an expert on work law, with a particular focus on workplace safety. She has written extensively on issues relating to injured workers and work and was a member of the drafting committee of the recently issued ILO Report, OSH and the COVID-19 pandemic: A legal analysis. She has served on numerous committees, including as chair of the Scientific Advisory Committee to the Institute for Work and Health (Toronto); the Whistleblower Protection Advisory Committee (U.S. Department of Labor); and the Worker Advocacy Advisory Committee (U.S. Department of Energy). 02 ILO Working Paper 92 Abstract 01 About the author 01 Acronyms 05 XIntroduction 07 X1 Occupational Safety and Health (OSH) system in the U.S. 08 A. Occupational safety and health national policy 09 B. The Occupational Safety and Health Act 09 Employers’ duties under the OSHAct 10 OSHA standards 10 Enforcement under the OSHAct 12 How inspections are prioritized 12 Proving violations  13 Civil and criminal penalties  14 Federal-state shared OSH responsibilities under the OSHAct  15 C. Mine Safety and Health Act 16 D. Regulatory agendas for OSH agencies 17 E. Coverage limitations 17 Not all workers and workplaces are covered by the U.S. OSH laws 17 Not all hazards and conditions are covered by the U.S. OSH laws 18 F. Workers’ rights within the health and safety regime 19 Employment protection in general 19 Workers’ rights under OSH laws in general 19 Anti-retaliation provisions in OSH laws 20 Potential legal challenges to retaliation under state laws 20 Safety under the labor laws 21 G. Workers’ social and income protection prior to the pandemic 21 Health care 21 Minimum wage 22 Unemployment insurance (UI) 22 Paid sick leave 22 Workers’ compensation 22 Disability insurance 23 Protection against discrimination based on disability 23 Table of contents 03 ILO Working Paper 92 X2 Responses to COVID & protecting frontline workers 24 A. Introduction: COVID in the U.S. 24 B. The federal response to the pandemic and essential workers 27 1. The initial response to COVID-19 27 2. OSHA & the pandemic 28 OSHA standards & guidance during the pandemic  28 OSHA COVID-related enforcement during the pandemic 32 Some specific essential sectors regulated by OSHA 33 3. MSHA & Mining 36 4. Federal vaccine mandates 38 C. State responses to COVID-19 and essential workers 41 OSHA state plan states 42 Case study of California 42 Case study of Arizona 44 Non-state plan OSHA states 46 Case study of Massachusetts  46 Case study of Mississippi 49 D. COVID-related litigation brought by individuals, activists and unions 50 1. Efforts to force agencies to act 51 2. Efforts to force employers to improve workplace safety 51 3. Challenge under international law regarding workers’ safety concerns in the U.S. 54 4. Stockholder derivative lawsuits 55 5. Claims raising issues of bias in employers’ implementation of COVID-related protections 55 6. Tort claims against employers for negligence resulting in injury or death from Covid-19 57 7. COVID-related safety and retaliation complaints 60 8. COVID-related individual claims of disability discrimination 60 E. The social safety net and the pandemic 61 Health insurance 62 Unemployment insurance 63 Paid sick leave 63 Workers’ compensation 64 Direct payments to individuals and families 64 Hazard pay 64 X3 OSH shortcomings and challenges faced by U.S. essential workers, highlighted by the pandemic experience 65 XConclusion 67 04 ILO Working Paper 92 Acknowledgements 68 05 ILO Working Paper 92 Acronyms ACA Affordable Care Act ADA Americans with Disabilities Act ARPA American Rescue Act ATD Aerosol transmitted diseases BLS Bureau of Labor Statistics CDC Centers for Disease Control and Prevention CISA Cybersecurity and Infrastructure Security Agency (within DHS) C.F.R. Code of Federal Regulations (designation for federal regulations) CMS Centers for Medicaid and Medicare Services CWCI California Workers’ Compensation Institute CARES Act Coronavirus Aid, Relief, and Economic Security Act DHS Federal Department of Homeland Security DLS Massachusetts Department of Labor Standards DOL Federal Department of Labor DPA Defense Production Act EEOC Equal Employment Opportunity Commission ETS Emergency Temporary Standard Fed.Reg. Federal Register (place for publication of all federal notices and rules) FFCRA Families First Coronavirus Response Act FMLA Family and Medical Leave Act FOUC Federal Pandemic Unemployment Compensation HHS Federal Health and Human Services department I2P2 Injury and Illness Program Prevention 12 ILO Working Paper 92 There is no standard or specific requirement for the development of workplace-specific Occupational Safety and Health Management Systems26 (sometimes referred to in the U.S. as Injury and Illness Prevention Programs or I2P2) under federal OSHA,27 and there are no penalties for failure to develop these systems; employers cannot be cited under the general duty clause for failure to develop a prevention-based labor-management system to address hazards in the workplace. There is no federal requirement for the establishment of joint management-labor committees.28 Enforcement under the OSHAct Although the regulatory model is designed as a ‘command-and-control’ model, the OSHAct is based on a concept of pre-inspection compliance. That is, the expectation is that employers will comply as a preventive matter, not that the agencies will be able to inspect every employer with regularity. Unlike under the Mine Act, the OSHAct does not require that every employer be inspected. In fact, OSHA is not staffed or funded to perform inspections of all employers; requiring employers to comply with the OSH Act before an inspection is, therefore, the only possible approach. The OSHA inspection force is tiny in comparison to the breadth of OSHA’s jurisdiction. According to the official OSHA website, there are a total of approximately 1,850 inspectors in both the federal and state-approved programs; these inspectors are responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation. 29 These numbers are echoed in the annual study by the AFL-CIO, the international union federation: in FY2020 there were 774 federal and 1024 state inspectors to inspect 10.1 million workplaces, or one inspector for every 82,881 workers – and the number of OSHA inspectors was at its lowest number since the agency was established 50 years ago.30 Federal OSHA is responsible for all enforcement activities in states that do not have approved state plans for the private sector, as well as for enforcement involving federal and postal service employees in every state. The agency is divided into regions, and each regional office employs compliance officers who are trained to investigate workplace hazards. How inspections are prioritized While pre-inspection compliance is the goal, OSHA has the power to levy civil penalties against employers for failing to comply either with standards or with the general duty clause. The OSHAct sets out the following priorities for inspections: 31 1. Imminent danger investigations. These inspections are almost always conducted within 24 hours of notification to the OSHA area office. Imminent danger is defined by the Act as a danger "which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act." 32 26 For a discussion of the ILO approach, see Occupational Safety and Health Management Systems, ILO, https://www.ilo.org/safework/ areasofwork/occupational-safety-and-health-management-systems/lang--en/index.htm (last visited Mar. 3, 2023). 27 State with approved state plans can adopt I2P2 standards. See California case study in Part II(C), infra. 28 In at least two states (Washington and Connecticut) there are provisions in the state workers’ compensation laws that require joint labor-management committees to be established. 29 Commonly Used Statistics, Dep’t of Lab., Occupational Safety & Health Admin., https://www.osha.gov/data/commonstats#:~:text=Federal%20 OSHA%20is%20a%20small,officer%20for%20every%2070%2C000%20workers (last visited Feb. 7, 2023). 30 AFL-CIO, Death on the Job: The Toll of Neglect 3 (30th ed. 2021), https://aflcio.org/reports/death-job-toll-neglect-2021. 31 29 U.S.C. § 657 (governing investigations). For a full discussion of inspection and enforcement priorities, see Field Operations Manual, Directive No. CPL 02-00-164, Dep’t of Lab., Occupational Safety & Health Admin. (Apr. 14, 2022), https://www.osha.gov/sites/default/ files/enforcement/directives/CPL_02-00-164_1.pdf. 32 29 U.S.C. § 662(a) (setting out this definition and governs the process by which injunctions can be sought in imminent danger situations). 13 ILO Working Paper 92 2. Fatality and catastrophe investigations (three or more employees). These investigations are conducted to determine if noncompliance with standards or the general duty clause caused the injuries. 3. Investigation of complaints. Complaints regarding dangerous conditions that come from workers, unions, health care professionals and others will generally lead to an inspection unless: the person lodging the complaint does not establish reasonable grounds to believe that a violation threatening physical harm or an imminent danger exists; or a recent inspection or other objective evidence indicates that the hazard is not present or has been abated; or if the complaint is not within OSHA's jurisdiction. 4. In addition, OSHA has both National and Regional Emphasis Programs that target industries or hazards with particularly high rates of injuries. For example, targeted hazards have included combustible dust, hazardous machinery, hexavalent chromium, isocyanates, lead and crystalline silica; targeted industries have included nursing and residential care facilities, primary metal industries and shipbreaking; targeted processes have included process safety management in chemical facilities and petroleum refineries, and trenching and excavation. The following chart sets out the total inspections done nationally by federal OSHA before the pandemic, broken down by category:33 Note that the powers of the inspectorate are limited. After completion of an inspection, the inspector reports back to the regional office where a determination is made whether the employer should be cited, at what level, and what the penalty should be. If the employer challenges the citation, there is no legal requirement for abatement of the hazard pending review by OSHRC. In cases involving imminent danger, the inspector has no authority under the Act to shut down all or part of any operations. Instead, the inspector must report back to OSHA, and the agency must then seek an injunction from a federal judge to shut it down.34 Proving violations To prove a violation of a standard, OSHA must show: 1. A specific standard applies to the workplace situation; 2. The standard’s requirements were not met; 3. Employees were exposed (or could be exposed) to the violative conditions; and 4. The employer either knew or could have known with exercise of reasonable diligence of the violative condition.35 33 Occupational Safety and Health Administration (OSHA) Enforcement, Dep’t of Lab., Occupational Safety & Health Admin., https:// www.osha.gov/enforcement/2019-enforcement-summary (last visited Jan. 22, 2023). 34 See Occupational Safety and Health Act § 13(a), 29 U.S.C. § 662(a). 35 See, e.g., Thomas G. Gallagher, Inc. v. Occupational Safety & Health Rev. Comm’n, 877 F.3d 1, 6 (1st Cir. 2017). 14 ILO Working Paper 92 To prove a violation of the general duty clause, OSHA must show: 1. The employer failed to keep the workplace free of an identified hazard to which employees of that employer were exposed; 2. The hazard was recognized; 3. The hazard was causing or was likely to cause death or serious physical harm; and 4. There was a feasible and useful method to correct the hazard.36 For a violation of the general duty clause to be proved, therefore, there must be a focus on a specific hazard likely to cause death or serious harm. Employers cannot be cited for failure to develop workplace health and safety program or failure to have safety and health labor-management committees. Notably, it is complex and difficult for OSHA to mount a “general duty” case, because evidence must be introduced in each individual case regarding the risks (based on scientific evidence) and the feasibility of abatement (based on expert evidence). OSHA can use its enforcement powers on an enterprise-wide, rather than single location, basis, when there is a pattern across commonly owned and operated locations. This power has not been used frequently and is often challenged by employers. There have, however, been corporate-wide settlements of health and safety violations that have been negotiated with a number of companies in a range of industries and sectors, including critical sectors such as transportation, healthcare (nursing homes), food systems and manufacturing.37 Civil and criminal penalties OSHA violations are categorized as anything from “other-than-serious” to willful or repeated. Penalties are assessed based on the seriousness of the violation. Note that these are the maximum allowable fines and are adjusted annually; the following amounts are effective for 2023:38 A serious violation occurs where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A willful violation occurs when the employer knowingly commits a violation involving a hazardous condition or operates with plain indifference to the law. 36 See, e.g., Nat’l Realty & Const. Co. v. Occupational Safety & Health Rev. Comm’n, 489 F.2d 1257, 1265 (D.C. Cir. 1973). 37 See Corporate-Wide Settlement Agreements, Dep’t of Lab., Occupational Safety & Health Admin., https://www.osha.gov/enforcement/ cwsa(last visited Feb. 7, 2022). 38 See OSHA Penalties, Dep’t of Lab., Occupational Safety & Health Admin., https://www.osha.gov/penalties (last visited Mar. 25, 2023) (describing the maximum penalty amounts, with the annual adjustment for inflation, that may be assessed after Jan. 15, 2023). 15 ILO Working Paper 92 The Act also provides for limited low level criminal charges at the misdemeanor level when a violation is judged to be “willful” and results in the death of an employees.39 Criminal prosecutions under this provision are rare. More serious criminal charges may result if there is also a violation of the environmental protection laws, or if a criminal charge is brought under state law. Federal-state shared OSH responsibilities under the OSHAct OSHAct Section 18 40 sets up shared responsibility between the federal government and the states for worker safety and health in all private sector employment covered by the OSHAct; it allows states to assume full responsibility for occupational safety and health within the state with the approval of OSHA. This map of the U.S. shows the current status of states’ assumption of legal responsibility for OSH:41 States that have sought approval to take over OSHA enforcement pursuant to Section 18 (colored the medium blue on the map) are generally called “state plan states ” As can be seen on the map, about half of states have done this, and as a result these states receive federal support for 39 Occupational Safety and Health Act § 17(e), 29 U.S.C. § 666(e). (“Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both”). 40 29 U.S.C. §§ 667(a)-(h). 41 Map downloaded from State Plans, Dep’t of Lab., Occupational Safety & Health Admin, https://www.osha.gov/stateplans (last visited Mar. 6, 2023). Note that this map was updated to reflect the approval on August 17, 2022 of a State Plan for public sector workers in Massachusetts. See Massachusetts State Plan for State and Local Government Employers’ Initial Approval Determination, 87 Fed. Reg. 50766 (Aug. 18, 2022) (to be codified at 29 C.F.R. pt. 1956). 16 ILO Working Paper 92 their OSH programs.42 These state plans create a state-based system of OSH for both private and state and local public sector workers within the borders of the state. State plans require federal approval and must be consistent with federal law (comparable standards, enforcement, and adjudicatory functions) and “at least as effective” – but specific aspects of standards and enforcement may vary. Federal OSHA does not reach state and local public employers. States may, or may not, regulate health and safety in this sector. Six states without approved private sector state plans have approved state plans that specifically cover state and local public employees (colored dark blue on the map). 43 This means that in states without any approved state plan (colored light blue on the map), state and local public sector workers may have no OSH protection at all. See the discussion of coverage limitations, below. In states without state plans, federal OSHA is directly responsible for enforcement of the standards, the general duty clause and the anti-retaliation provision in the OSHAct. If OSHA does not have a standard that regulates a safety and health hazard, any state—with or without a state plan – may do so.44 When there is an existing OSHA standard, however, the Supreme Court has interpreted Section 18 to mean that the OSHAct “precludes any state regulation of an occupational safety and health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved.”45 In other words, states that do not have state plans (“federal OSHA states”) may not regulate the hazard for which a standard has been promulgated – at all. States with state plans may choose to adopt a more stringent standard for a regulated substance or hazard – for example, these states may adopt a standard governing confined spaces that is more stringent than the federal standard. Hazards that OSHA regulates under the general duty clause, and for which no OSHA standard exists, may be regulated by any state. For example, any state may regulate ergonomic hazards or ban workplace smoking or address heat stress – or airborne infectious diseases – since federal OSHA currently has no standards for these hazards. When OSHA chooses to issue a new regulation, state laws in federal OSHA states are wiped out by the preemptive effects of the statute, and the federal regulation may have a levelling effect. Even in federal OSHA states, however, "state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and non-workers alike," are not preempted. Only laws "directed at workplace safety" will be preempted.46 C. Mine Safety and Health Act The Mine Safety and Health Act has a similar administrative and adjudicative structure to that of OSHA and OSHRC, but the substantive provisions of the law are stronger. In sharp contrast to the OSHAct, the Mine Act provides for a mandatory comprehensive inspection cycle: four times a year for underground mines, twice a year for surface facilities.47 Inspectors have on-site authority to shut down an operation if it poses an imminent danger to the workers.48 Workers who ac42 For a current listing of state plan states, see State Plans, supra note 41. 43 Massachusetts was added as the sixth state on August 18, 2022. See supra note 41. 44 Section 18(a) of the OSH Act provides that it does not “prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no [OSHA] standard is in effect…” 29 U.S.C. § 667(a). 45 Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 102 (1992). 46 Id. at 107. 47 Mine Act § 103(a), 30 U.S.C. § 813. 48 Mine Act § 107(a), 30 U.S.C. § 817. 17 ILO Working Paper 92 company the inspector on walkaround inspections must be paid for their time. Fines are higher than under the OSHAct.49 Employers must abate hazards immediately, even if they appeal the citation or fine.50 Protection for workers against retaliation is stronger, including an immediate right to reinstatement if they are discharged, as long as their claim is not viewed as “frivolous.”51 The MSHAct sets up a parallel system of enforcement, with a separate adjudicative agency, the Mine Safety and Health Review Commission (MSHRC). In addition, the federal-state partnership is designed quite differently under the MSHAct. In mining, states may set up parallel mine safety regulatory systems that do not displace any of the federal regulatory and enforcement processes. In addition, the U.S. has ratified ILO Convention 176 on the Safety and Health in Mines.52 The U.S. federal law is fully consistent with the Convention. D. Regulatory agendas for OSH agencies Every federal agency is required to notify the public regarding its plans for developing or amending its regulations. The regulatory agenda posted in fall 2021 by OSHA included two pandemic-related rules, the COVID-19 Vaccination and Testing Emergency Temporary Standard Rulemaking and the Emergency Temporary Standard--COVID-19; both of these are discussed in Part II below. The OSHA agenda posted most recently (fall 2022)53 indicated that the COVID-19 rule is now in the process of being finalized, and the agenda added a more general infectious disease standard for health care, which is now in the proposed rule stage.54 E. Coverage limitations Not all workers and workplaces are covered by the U.S. OSH laws OSHA provides broad coverage of private sector industries, including construction, agriculture55 and forestry. MSHA does the same for mining and mining related activities. The federal Executive Order extends the coverage of OSHA to federal public sector employees.56 Limitations and exclusions relevant to essential workers: 1. Public sector workers at the state, county and municipal level are not covered by any federal OSH laws. OSH protection for these workers must be enacted by each state, and there is no requirement that this be done. This means that some essential workers – in all sectors, including health care, transportation, security and corrections – may have no OSH regulatory protection. The states in this category are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Nebraska, Ohio, Oklahoma, Rhode Island, Pennsylvania, South Dakota, Texas, West Virginia and Wisconsin. A few of these states (e.g. West Virginia and Wisconsin) do have state laws that set up OSH regimes for some of their public sector workers, but these are not encompassed within the federal scheme. As a result, for example, the West Virginia law for their public sector workers only covers employees of the state (not county and municipal workers) 49 Mine Act § 103(f), 30 U.S.C. § 813. 50 Mine Act § 104(a)-(b), 30 U.S.C. § 814. 51 Mine Act § 104(c)(2), 30 U.S.C. § 815. 52 C-176 – Safety and Health in Mines Convention, 1995 (No. 176), ILO (Jun. 22, 1995), https://www.ilo.org/dyn/normlex/en/f?p=NORM LEXPUB:12100:0::NO::P12100_ILO_CODE:C176 53 Agency Rule List – Fall 2022, Off. of Info. & Regul. Aff., https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_ AGENCY_RULE_LIST¤tPub=true&agencyCode=&showStage=active&agencyCd=1200 (last visited Feb. 9, 2023). 54 Id. 55 OSHA does not regulate pesticide exposure in farmworkers. This is separately covered by the Environmental Protection Agency pursuant to the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 and 40 C.F.R. §§ 170.1-170.9. 56 Exec. Order No. 12196, 3 C.F.R. 145 (1980). 18 ILO Working Paper 92 and specifically excludes “the department of corrections, the department of health and the Legislature” – thereby excluding some of the highest risk essential workers.57 2. The regulatory structure is rooted in the employer-employee relationship. Protections are offered to “employees” and not because of a workers’ presence in a workplace.58 As a result, workers classified (or misclassified) as independent contractors, students and volunteers, irrespective of the sector or the occupation, are not protected under the U.S. OSH laws. This means, for example, that employers are not required to provide training, and they do not have the rights described below, including the right under the OSHAct to be protected from retaliation for raising safety concerns. This also creates confusion regarding OSH protections for workers employed by staffing or temp agencies. Faced with this dilemma, OSHA has issued guidance 59 regarding these triangulated relationships that specifically says that “staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers - including, for example, ensuring that OSHA's training, hazard communication, and recordkeeping requirements are fulfilled,” and continues: “A key concept is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. For example: staffing agencies might provide general safety and health training, and host employers provide specific training tailored to the particular workplace equipment/hazards. 1. The key is communication between the agency and the host to ensure that the necessary protections are provided. 2. Staffing agencies have a duty to inquire into the conditions of their workers' assigned workplaces. They must ensure that they are sending workers to a safe workplace. 3. Ignorance of hazards is not an excuse. 4. Staffing agencies need not become experts on specific workplace hazards, but they should determine what conditions exist at their client (host) agencies, what hazards may be encountered, and how best to ensure protection for the temporary workers. 5. The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a safe workplace.”60 3. Firms can qualify for status that relieves them of regular inspections under the designated emphasis programs if they qualify under certain voluntary compliance programs.61 4. Small farms (fewer than 10 employees) are entirely exempted from inspections. In theory, OSHA covers all farms. But under Congressional appropriations that carry the force of law, OSHA is not allowed to spend any appropriated funds for enforcement under the OSHAct on any farming operation which employs 10 or fewer employees and does not maintain a temporary labor camp. 5. Other small employers with fewer than 10 employees are also exempted from some OSHA requirements, including recordkeeping,62 and are not included in OSHA’s regular program of inspections. Not all hazards and conditions are covered by the U.S. OSH laws Notably, in the context of the pandemic, there are no federal regulations or standards that address mental health, bullying, burnout, or any of the related conditions, and these have not 57 W. Va. Code § 2ª-3A-2 (1987). 58 See Occupational Safety and Health Act § 3, 29 U.S.C. § 652. 59 Protecting Temporary Workers, Dep’t of Lab., Occupational Safety & Health Admin, https://www.osha.gov/temporaryworkers/ (last visited Feb. 9, 2023). 60 Id. 61 Voluntary Protection Programs, Dep’t of Lab., Occupational Safety & Health Admin, https://www.osha.gov/vpp (last visited Feb. 9, 2023). 62 29 C.F.R. § 1904.1 (2020). 19 ILO Working Paper 92 been a priority for federal OSHA. Regulations also fail to address some common physical hazards. As noted above, some of these hazards, including heat stressors and workplace violence, have been addressed through application of the general duty clause – and some are regulated under the more comprehensive state plans. Bullying has only been addressed in the context of whistleblower complaints as a component of retaliation, but not separately as an OSH hazard. F. Workers’ rights within the health and safety regime Employment protection in general It is impossible to engage in a study of OSH protections for workers in the U.S. without first acknowledging that the underlying legal regime for workers does not protect private sector, non-unionized workers from discipline and discharge at the whim of the employer: the “employment-at-will” doctrine remains the dominant rule in all U.S. states except Montana.63 With a unionization rate in the private sector of only 6.1 percent, this means that almost all essential workers in the private sector live under this regime.64 There are, of course, specific exceptions to this, but almost all of these exceptions require workers to prove that they fit within the specific exception and that the disciplinary action was taken because of their membership in the protected category. This has far-reaching consequences for OSH, as workers are very often reluctant to raise concerns about health and safety or to report injuries.65 Workers’ rights under OSH laws in general Since the OSH laws in the U.S. are not built on a tripartite model, the explicit rights of workers are very limited. Under both the OSHAct and the Mine Act, workers can: participate in the public process of standard-setting; make complaints to the agency to request inspections; participate in the inspection process;66 protest the abatement period set by a citation by OSHA; and participate in any appeal of a citation filed by an employer. In addition, employers must post a notice of rights and requirements; 67 provide information about hazards under the Hazard Communication Rule;68 and give employees access to records.69 Rights under the Mine Act are somewhat more extensive than under the OSHAct, including a right to be paid during inspections. 63 Wrongful Discharge from Employment, Mont. Code Ann. § 39-2-901 (1987). 64 According to the Bureau of Labor Statistics (BLS), in 2021, only 6.1 percent of private sector workers were in unions; the union membership rate of public-sector workers was considerably higher at 33.9 percent; the overall unionization rate, with private and public sector combined, was 10.3 percent. Union Members – 2021, Bureau of Lab. Stat. (Jan. 20, 2022, 10:00 AM), https://www.bls.gov/news. release/pdf/union2.pdf. 65 Numerous studies and articles that summarize empirical data in the U.S. demonstrate this point. See, e.g., Charlotte S. Alexander, Transmitting the Costs of Unsafe Work, 54 Am. Bus. L. J. 463 (2017); Lenore S. Azaroff, Charles Levenstein & David H. Wegman, Occupational Injury and Illness Surveillance: Conceptual Filters Explain Underreporting, 92 Am. J. Pub. Health 1421 (2002); Emily A. Spieler & John F. Burton, Jr., The lack of Correspondence Between WorkRelated Disability and Receipt of Workers’ Compensation Benefits, 55 Am. J. Indus. Med. 487 (2012); Emily A. Spieler & Gregory R. Wagner, Counting Matters: Implications of Undercounting in the BLS Survey of Occupational Injuries and Illnesses, 57 Am. J. Indus. Med. 1077 (2014); Kenneth D. Rosenman et al., How Much Work-Related Injury and Illness is Missed by the Current National Surveillance System?, 48 J. Occupational & Env’t Med. 357 (2006); Leslie I. Boden & Al Ozonoff, Capture–Recapture Estimates of Nonfatal Workplace Injuries and Illnesses, 18 Annals Epidemiology 500 (2008); Timothy Morse et al., Capture-Recapture Estimation of Unreported Work-Related Musculoskeletal Disorders in Connecticut, 39 Am. J. Indus. Med. 636 (2001); Monica Galizzi et al., Injured Workers’ Underreporting in the Health Care Industry: An Analysis Using Quantitative, Qualitative, and Observational Data, 49 Indus. Rel.: J. Econ. & Soc’y 22 (2009); Z. Joyce Fan et al., Underreporting of Work-Related Injury or Illness to Workers’ Compensation: Individual and Industry Factors, 48 J. Occupational & Env’t Med. 914 (2006); Xiuwen S. Dong et al., Injury Underreporting Among Small Establishments in the Construction Industry, 54 Am. J. Indus. Med. 339 (2011). 66 Under the OSHAct, inspections can be conducted without worker participation, and employers are not required to pay workers who do participate. Under the Mine Act, participating workers must be paid for time spent. 67 For general industry, this requirement can be found at 29 C.F.R. § 1903.2. 68 29 C.F.R. § 1910.1200 (2013). 69 29 C.F.R. § 1910.1020 (2011). 20 ILO Working Paper 92 Anti-retaliation provisions in OSH laws The OSHAct has a specific provision that is designed to protect workers from retaliation for raising concerns about safety or notifying the employer about an injury. 70 Under this provision, employers are prohibited from retaliating against workers who raise safety concerns, notify the employer about an injury, or participate in any part of OSHA enforcement activities. Overall, this is a relatively weak provision: complaints must be filed with OSHA within 30 days; the agency then will investigate and attempt to settle the claim; if it is not settled and is viewed as meritorious, the case is sent to the Solicitor of Labor (SOL) to review; and if SOL believes the case is worth pursuing, it must be filed in federal court.71 Very few cases reach this stage, and the decision by SOL as to whether to pursue a case is entirely discretionary and non-reviewable. The regulations under the OSHAct anti-retaliation provision also provide some limited protection for workers who refuse to perform imminently dangerous work.72 The Mine Act makes explicit provision for refusal of dangerous work.73 Protection against retaliation under federal safety laws other than the OSHAct (including the Federal Railway Safety Act, the Surface Transportation Assistance Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as AIR21, and others) is more robust than that provided under the OSHAct: the statutes of limitations are longer; the remedies are broader; the proof required to show the employer’s intent is reduced (under some of these statutes, if an employee successfully shows that the protected activity was a contributing cause, the employer has to prove by clear and convincing evidence that the retaliatory action was not unlawfully motivated); and workers can bring the cases forward to either administrative hearings or judicial proceedings on their own.74 The MSHAct also has stronger provisions than the OSHAct, including a provision for temporary reinstatement of a discharged worker while the claim is pending if it is viewed as “not frivolous” by the investigating agency.75 Potential legal challenges to retaliation under state laws State law can provide additional protection from retaliation involving health and safety. Coverage varies. It can be based in common law through judicially developed principles that allow workers without other job protection to sue employers for retaliatory discharge that violates a recognized public policy. States have recognized this principle in relation to retaliation for raising safety concerns. Some states also have specific anti-retaliation laws, sometimes referred to as whistleblower laws, to protect workers from retaliation: in some states, these are limited to state public sector workers; in other states, they cover all workers. Finally, OSHA state plan states must have provisions in the OSH statute regarding retaliation; in some states, these provisions are more protective of workers than the federal statutory requirement. 70 29 U.S.C. § 660(c); 29 C.F.R. §1977. 71 For an analysis of this OSHAct provision, see Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act, 32 ABA J. Lab. & Emp. L. 1 (2016). 72 29 C.F.R. § 1977.12(b)(2) (“ … occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee’s apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.”). In Whirlpool Corp. v. Marshall, 445 U.S. 1, 22 (1980), the Supreme Court upheld this regulation despite the fact that the OSHAct itself makes no reference to the right to refuse dangerous work. 73 See Section 105(c) of the Mine Act, 30 U.S.C. § 815(c), and 29 C.F.R. Subpart–E - Complaints of Discharge, Discrimination or Interference. 74 For a full analysis of the differences among these statutes, see Spieler, supra, note 71. 75 Mine Act § 104(c)(2), 30 U.S.C. § 815. 21 ILO Working Paper 92 Safety under the labor laws Workers have the right to engage in activity for mutual aid and protection under the National Labor Relations Act.76 This includes the right to refuse dangerous work, and to be free from retaliation for raising safety concerns, irrespective of whether the workers are members of labor unions or covered by collective bargaining agreements.77 Collective bargaining agreements – contracts between unions and specific workplaces or broader enterprises – generally contain safety and health provisions, as well as strong protection against discipline and discharge. Once workers are unionized, their employer is obligated to negotiate regarding safety and health.78 As noted above, however, unionization rates are now extraordinarily low in the U.S. G. Workers’ social and income protection prior to the pandemic Health care Most workers in the U.S. obtain health insurance through their employers or under provisions of the Affordable Care Act (ACA).79 A smaller number are insured through federal programs such as Medicare (which provides health insurance to people over 65, including those who are still working) and Medicaid (which provides coverage for those who meet strict poverty guidelines, including workers in very low wage jobs). Although health insurance is universally available, there is, in fact, no truly universal system of health care access in the U.S. Although workers who do not obtain health insurance through employment (and do not qualify for Medicare or Medicaid) can purchase insurance through regulated markets, choice of plans is influenced by price, and lower cost plans provide less adequate coverage. The ACA also expanded government-supported Medicaid to support health care for those who could not afford it on the market exchanges. Initially this provision was mandatory, requiring states to participate, but the Supreme Court ruled that Medicaid expansion established through the ACA is constitutional only if it was optional for states to participate.80 Fourteen states81 initially refused the Medicaid expansion, thereby limiting the access of people with low income to health insurance; twelve of these states have continued to refuse the expansion, despite further federal support that was offered in the American Rescue Plan Act 82(ARPA) that was passed to provide COVID-relief. ARPA also increased subsidies for purchase of health insurance, and these subsidies have been continued under the 2022 Inflation Reduction Act.83 Nevertheless, low wage essential workers may be without any health care coverage. In 2020, 8.6 percent or 28 million people in the U.S. did not have health insurance at any point during the year.84 A recent study found that 23 million people (nearly 1 in 10 adults) owe significant medical debt in the U.S.; Black Americans, and people living in the South or in Medicaid non-expansion 76 National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1). 77 See N.L.R.B. v. Wash. Aluminum Co., 370 U.S. 9, 17 (1962); Prill v. N.L.R.B., 835 F.2d 1481, 1485 (D.C. Cir. 1987). 78 National Labor Relations Act, 29 USC § 158(d); Oak Harbor Freight Lines, Inc. v. N.L.R.B., 855 F.3d 436, 438 (D.C. Cir. 2017). 79 Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-48, 124 Stat. 119 (2010). 80 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 585 (2012). 81 Alabama, Florida, Georgia, Kansas, Mississippi, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Wisconsin, Wyoming. 82 American Rescue Plan Act of 2021, Pub. L. No. 117-2 (2021). 83 Inflation Reduction Act of 2022, Pub. L. No. 117-169 (2022). 84 See Katherine Keisler-Starkey & Lisa N. Bunch, U.S. Census Bureau, Health Insurance Coverage in the United States: 2020, Report No. P60-274 (2021), https://www.census.gov/library/publications/2021/demo/p60-274.html 28 ILO Working Paper 92 security, national public health or safety, or any combination thereof.” At least initially, the focus of the directives from CISA/DHS was entirely “to help officials and organizations identify essential work functions in order to allow [workers] access to their workplaces during times of community restrictions.” Later, there was greater acknowledgement of the need to protect essential workers “to ensure that they can work safely,” as well the need to provide for “the allocation of scarce resources used to protect essential workers against COVID-19.”100 The CDC, the primary national public health agency, issued guidelines for masking, social distancing, screening, hygiene, testing, quarantine and isolation, including interim guidance for infrastructure businesses.101 The CISA/DHS guidance followed the CDC guidelines on protection of workers,102 but enforcement, if there was any, generally fell to states and local public health agencies. The role of OSHA is described separately below. In view of the fact that neither the CDC nor WHO treated COVID-19 as a disease that spread by aerosol transmission, little attention was paid to ventilation, which in the hierarchy of controls should have been a primary focus. As of March 19, 2020, all 50 states and the District of Columbia had declared emergencies related to the pandemic. Emergency orders listed essential functions and businesses, often following the lead of CISA/DHS, and these were ordered to continue to operate. When in-person operation was necessary, orders included requirements for mitigation measures (masking, social distancing, hygiene and sanitation, quarantine and isolation). The specific sectors varied somewhat from one state to another, but always included all healthcare and social service providers, emergency responders, retail groceries and pharmacies, transportation, food chain businesses, security and corrections. There is no easily accessible data base to tell us what happened at the local level, though there were reports of local public agencies shutting down businesses (including, for example, meatpacking plants) when significant disease clusters appeared in a workforce. Moreover, inadequate supplies of PPE early in the pandemic and problematic access to health care further challenged the OSH response for essential workers. 2. OSHA & the pandemic OSHA standards & guidance during the pandemic 103 OSHA standards that were in effect at the beginning of the pandemic that have some relationship to the pandemic exposures include: 1. Employers’ obligations for recording and reporting injuries and illnesses. 104 2. General requirements regarding personal protective equipment, providing: 1910.132(a) Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.105 100 Id. 101 Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020, CDC (Feb. 26, 2020), https://stacks.cdc.gov/view/cdc/85488. 102 For the most recent version of the CISA/DHS directive, see Cybersecurity & Infrastructure Sec. Agency, Version 4.1, Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response (2021), https://www. cisa.gov/sites/default/files/publications/essential_critical_infrastructure_workforce-guidance_v4.1_508.pdf. 103 For a discussion of OSHA’s response to the pandemic and related litigation, see Randy Rabinowitz, The Sad, Sad Story of OSHA’s Failure to Protect Workers From COVID-19, 32 New Sol. 86, 86–91 (2022). 104 29 C.F.R. § 1904.0 (2017). 105 29 C.F.R. § 1910.132 (1974). 29 ILO Working Paper 92 3. Respiratory protection106 providing: 1910.134(a)(1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination. This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation, and substitution of less toxic materials). When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to this section. 1910.134(a)(2) A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protection program, which shall include the requirements outlined in paragraph (c) of this section. The program shall cover each employee required by this section to use a respirator. 4. Sanitation, requiring housekeeping and sanitation, provision of potable water, hand soap, toilets.107 These standards could be enforced with regard to relevant hazards in any sector. As noted above, there were no federal regulations at the start of the pandemic that would have protected workers specifically from the airborne spread of an infectious disease. OSHA did issue guidance, largely based on guidance issued by the CDC, suggesting “good practices,” but not mandating them.108 In early March 2020, OSHA issued a booklet with suggestions for employers, telling them to “promote frequent and thorough hand-washing,” “encourage respiratory etiquette, including covering coughs and sneezes” and “provide customers and the public with tissues” – but specifically noting that these precautions were not legal requirements. Later guidance addressed the need for ventilation in workplaces.109 Specific guidelines were also issued by industry, largely following the CDC guidance. At least in theory, employers who did not address significant exposures to COVID-19 could be cited under the general duty clause once the level of risk became apparent. In its initial guidance, OSHA divided workplaces into four categories of risk:110 106 29 C.F.R. § 1910.134 (1974). 107 29 C.F.R. § 1910.141 (1974). 108 See Control and Prevention, Interim General Guidance for All Workers and Employers, Dep’t of Lab., Occupational Safety & Health Admin., COVID-19 - Control and Prevention | Occupational Safety and Health Administration (osha.gov) (last visited Feb. 12, 2023) (“For all workers, regardless of specific exposure risks, it is always a good practice to: -Wear cloth face coverings, at a minimum, at all times when around coworkers or the general public. If a respirator, such as an N95 respirator or better, is needed for conducting work activities, then that respirator should be used, and the worker should use their cloth face covering when they are not using the respirator (such as during breaks or while commuting). -Frequently wash your hands with soap and water for at least 20 seconds. When soap and running water are not immediately available, use an alcohol-based hand sanitizer with at least 60% ethanol or 70% isopropanol as active ingredients and rub hands together until they are dry. Always wash hands that are visibly soiled. -Avoid touching your eyes, nose, or mouth with unwashed hands. -Practice good respiratory etiquette, including covering coughs and sneezes or coughing/sneezing into your elbow/upper sleeve. -Avoid close contact (within 6 feet for a total of 15 minutes or more over a 24-hour period) with people who are visibly sick and practice physical distancing with coworkers and the public. -Stay home if sick. -Recognize personal risk factors. According to the U.S. Centers for Disease Control and Prevention (CDC), certain people, including older adults and those with underlying conditions such as heart or lung disease, chronic kidney disease requiring dialysis, liver disease, diabetes, immune deficiencies, or obesity, are at higher risk for developing more serious complications from COVID-19.”). 109 Occupational Safety & Health Admin., OSHA 4103-03R 2021, COVID-19 Guidance on Ventilation in the Workplace (2021), https://www. osha.gov/Publications/OSHA4103.pdf. 110 Occupational Safety & Health Admin., OSHA 3990-03, Guidance on Preparing Workplaces for COVID-19 (2020), https://www.osha. gov/sites/default/files/publications/OSHA3990.pdf. 30 ILO Working Paper 92 The “very high” top category was limited to health care workers performing aerosol-generating procedures or collecting or handling specimens, as well as morgue workers performing autopsies. The second tier (“high) included health care delivery and support staff who were exposed to patients, medical transport workers, and mortuary workers. All other workers were in the two lower exposure groups, including the sectors and workers where the conditions were dangerous (such as meatpacking) or where workers were regularly exposed to the public (such as grocery stores). This categorization was important, because OSHA initially announced that it was not going to use its full enforcement authority in the lower exposure groups. Instead, complaints from workers in these groups were to be treated through a “non-formal phone/fax procedures” and a complaint would not be followed by an on-site inspection. Moreover, the guidance limited use of the general duty clause to jobs in the top two tiers. Under public pressure, OSHA expanded its enforcement efforts in May 2020 to include workplaces with high numbers of complaints or known COVID cases in industries, such as meatpacking, where large clusters of disease were being publicly reported. In January 2021, immediately after his inauguration, President Biden issued an “Executive Order on Protecting Worker Health and Safety” specifically calling attention to essential workers and workplace exposures: “Healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19….” and then calling upon OSHA to issue revised guidance for employers on workplace safety, consider an ETS on COVID-19, and review OSHA enforcement efforts “related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles”; and calling upon MSHA to “consider whether any emergency temporary standards on COVID-19 applicable to coal and metal or non-metal mines are necessary, and if such standards are determined to be necessary and consistent with applicable law, issue them as soon as practicable.”111 The Office of the Inspector General (OIG), the investigatory arm of the Department of Labor, issued four highly critical reviews of OSHA’s performance during the pandemic. The first audit expressed concerns regarding OSHA’s handling of whistleblower complaints, reiterating issues 111 Joseph R. Biden Jr., Executive Order on Protecting Worker Health and Safety, The White House (Jan. 21, 2021), https://www.whitehouse. gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-and-safety/. 31 ILO Working Paper 92 that OIG had expressed previously regarding the agency’s failure to undertake timely investigations.112 The second, issued in February 2021, focused generally on OSHA’s performance during the pandemic and was a scathing assessment of OSHA’s functioning during 2020.113 In this audit, the OIG set out to answer the question: “What plans and guidance has OSHA developed to address challenges created by COVID-19, and to what extent have these challenges affected OSHA’s ability to protect the safety of workers and its workforce?” The audit reviewed the failure of OSHA to perform on-site inspections and the weakness of guidances that were not enforceable. Its recommendations to the agency included the development of onsite inspection strategies and the issuance of an ETS for infectious diseases. OSHA, which received the report after the change in federal Administration, agreed with the recommendations, and started to move ahead with an ETS. The third audit, issued in March 2022, focused on the need for OSHA to work more collaboratively with other federal agencies to achieve effective and efficient results.114 In October 2022, OIG again expressed concerns regarding OSHA’s protection of workers during the pandemic.115 In June 2021, OSHA promulgated an Emergency Temporary Standard, “Occupational Exposure to COVID–19” that was limited to healthcare facilities.116 It required covered healthcare employers to develop and implement COVID–19 plans to identify and control COVID–19 hazards; addressed questions of PPE, cleaning and disinfection, health screening, training, recordkeeping and reporting and retaliation; and encouraged vaccination by requiring employers to provide reasonable time and paid leave for employee vaccinations and side effects. The provisions regarding ventilation required employers to ensure that existing ventilation systems be working in accordance with manufacturer’s instructions, that the amount of outside air circulated through the system be maximized “to the extent appropriate,” and specifically noted that new ventilation systems were not required. Further direction regarding ventilation referred employers to the CDC guidance, suggesting that employers should also “consider” other measures to improve ventilation in accordance with "CDC’s Ventilation Guidance,"117 (“e.g., opening windows and doors).” This standard was in effect for the statutory period of six months and was then withdrawn in December 2021.118 A broader standard, to cover all workers, was being developed by OSHA at the same time as the health care ETS. The administration took comments from stakeholders for several weeks and then decided not to issue it, without explanation. This draft would have required all employers 112 See Dp’t Of Lab., Off. of Inspector Gen. – Off. of Audit, No. 19-20-010-10-105, COVID-19: Osha Needs to Improve its Handling of Whistleblower Complaints During the Pandemic (Aug. 14, 2020), https://www.oig.dol.gov/public/reports/oa/2020/19-20-010-10-105. pdf (noting “the pandemic has significantly increased the number of whistleblower complaints OSHA has been receiving. OSHA was challenged to complete investigations in a timely manner before the pandemic, and the potential exists for even greater delays now,” and concluding, “[a]mid this challenge, OSHA needs to improve its handling of whistleblower complaints.”). 113 Dep’t of Lab., Off. of Inspector General – Off. of Audit, No. 19-21-003-10-105, COVID-19: Increased Workforce Worksite Complaints and Reduced OSHA Inspections Leave U.S. Workers’ Safty at Increased Risk (Feb. 25, 2021), https://www.oig.dol.gov/public/reports/ oa/2021/19-21-003-10-105.pdf. 114 Dep’t of Lab., Off. of Inspector Gen. – Off. of Audit, No. 19-22-003-10-105, COVID-19: To Protect Mission Critical Workers, OSHA Could Leverage Inspection Collaboration Opportunities Within External Federal Agencies (Mar. 31, 2022), https://www.oig.dol.gov/public/ reports/oa/2022/19-22-003-10-105.pdf (recommending that OSHA devise a plan for outreach and training and development memoranda of understanding with other agencies). 115 Dep’t of Lab., Off. of Inspector Gen. – Off. of Audit, No. 19-23-001-10-105, COVID-19: OSHA’s Enforcement Activities Did Not Sufficiently Protect Workers from Pandemic Health Hazards (Oct. 31, 2022), https:// www.oig.dol.gov/public/reports/oa/2023/19-23-001-10-105. pdf (“OSHA’s enforcement activities did not sufficiently protect workers from COVID-19 health hazards because OSHA: (1) did not issue citations to enforce the standard for recording and reporting occupational injuries and illnesses in 15 percent of sampled fatality COVID-19 inspections, (2) lacks complete information on COVID-19 infection rates at worksites, and (3) closed inspections without ensuring it received and reviewed all items requested from employers to demonstrate alleged COVID-19 health hazards had been mitigated.”). 116 29 C.F.R. § 1910.502 (discussing general ETS for protecting workers in health care facilities from COVID-19); 29 C.F.R. § 1910.504 (describing the mini-respirator program). 117 Ventilation in Buildings, CDC (Jun. 2, 2021), www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html. 118 COVID-19 Healthcare ETS: Statement on the Status of the OSHA COVID-19 Healthcare ETS, Dep’t of Lab., Occupational Safety & Health Admin. (Dec. 27, 2021), https:// www.osha.gov/coronavirus/ets. Note that there was controversy regarding whether OSHA was required under the statute to withdraw the ETS. The statutory section is somewhat ambiguous, in one place stating that an ETS “shall be effective until superseded” by a permanent standard, and in another subsection requiring OSHA to issue a permanent standard “no later than six months after publication of the emergency standard.” OSHA did not issue the permanent standard within the sixmonth period. See 29 U.S.C. § 655(c). 32 ILO Working Paper 92 – not just health care facilities – to develop and implement COVID-19 plans to identify and control COVID-19 hazards in the workplace.119 OSHA is currently developing a new permanent standard to replace the health care ETS.120 On January 5, 2022, National Nurses United and other unions filed a mandamus petition, asking the federal court to order OSHA to issue a permanent health care standard within 30 days of the granting of the writ and to enforce the healthcare temporary standard until it is “properly superseded” by a permanent standard. On August 26, 2022, the D.C. Circuit Court of Appeals rejected this petition.121 Meanwhile, as of 25 March 2023, no permanent standard has yet been issued. In early November 2021, OSHA issued its second ETS, mandating vaccinate-or-test programs for all employers with 100 employees or more,122 potentially reaching essential workers in all sectors. This ETS was never enforced, as it was immediately blocked by the courts. See the section below regarding vaccine mandates for further information. This means that there are no pandemic-specific federal OSHA standards in effect as of 25 March 2023 for any essential sectors or critical workers. Instead, OSHA has continued to use the generic pre-pandemic standards, as well as the general duty clause, when workers are exposed to significant risk of disease in their workplaces. In addition, the agency has continued to update its guidance for employers.123 OSHA COVID-related enforcement during the pandemic During 2020 and most of 2021, the workplaces and workers that were the focus of OSHA enforcement were essential workers in critical sectors. On its website, OSHA provides data on COVIDrelated inspections. 124 Because there is an allowable lag time (up to six months) from the date of an inspection to the date a citation is issued, no citations are listed until July 2020. In 2020, OSHA issued about 300 COVID-related citations, the vast majority of which were in health care, nursing homes and social services; eight inspections were of workplaces with food service workers; two large meatpacking enterprises (JBS and Smithfield) were cited under the general duty clause; at least two inspections involved warehouse workers. The citations primarily relied upon the pre-existing standards, most commonly the requirements for respirator programs and for accurate recording and reporting of injuries and diseases; citations against the meatpacking enterprises relied on the general duty clause. In 2021, another 443 COVID-related inspections were completed. Health care and related services continued to predominate. Inspections continued to be conducted in 2022. Other than healthcare, employers in the following sectors have been cited for COVID-related violations: manufacturing, construction, food and agribusiness, corrections, retail grocery, transportation and the postal service. During the time that the health care ETS was in effect, citations of health 119 Occupational Exposure to COVID-19; Emergency Temporary Standard, Dep’t of Lab., Occupational Safety & Health Admin. (Mar. 2021), https://aboutlaw.com/Yj6. 120 Public hearings regarding the permanent standard were held April 27-May 2, 2022. See COVID-19 Healthcare Rulemaking, Dep’t of Lab., Occupational Safety & Health Admin., https://www.osha.gov/coronavirus/healthcare/rulemaking (last visited Feb. 14, 2023). 121 In re National Nurses United, 47 F.4th 746, 754 (D.C. Cir. 2022) (“While the rulemaking process is mandatory, promulgating a permanent standard is not. The Act states that the agency ‘shall promulgate a standa©... no later than six months after publication of the emergency standard’ but also that any standard following an ETS be promulgated ‘in accordance with subsection (b).’ 29 U.S.C. § 655(c)(3). Contrary to the Unions’ assertions, the Act imposes no requirement to promulgate a permanent standard. Any permanent standard must be promulgated in accordance with the ordinary rulemaking process in the Act, which plainly provides that OSHA may conclude the process either by promulgating a permanent standard or by ‘mak[ing] a determination that a [standard] should not be issued.’ Id. § 655(b)(4). OSHA is permitted to choose either path, which means it does not have a clear duty to promulgate a permanent standard.”). 122 COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 (Nov. 5, 2021). 123 See Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, Dep’t of Lab., Occupational Safety & Health Admin. (Jun. 10, 2021), https://www.osha.gov/coronavirus/safework. 124 A full listing of COVID-related inspections can be found on the OSHA website: https://www.osha.gov/enforcement/covid-19-data/ inspections-covid-related-citations (last visited Feb. 21, 2023). 33 ILO Working Paper 92 care facilities for violation of the standard appear with considerable frequency. There is no record of OSHA shutting any facility down during the pandemic, including when serious clusters of cases appeared among workers in non-healthcare settings such as meatpacking. According to an OSHA official, OSHA in fiscal year 2021 conducted 1,860 COVID-19 related inspections that were prompted by complaints, up from the 1,695 inspections in fiscal year 2020, accounting for about 7.6% all of OSHA’s 24,355 inspections in 2021.125 As of September 30, 2022, federal OSHA reported that it had issued Covid-related citations against 976 workplaces since the pandemic began, with total proposed penalties of $7,804,499.126 Of these citations, only 29 involved violations of the General Duty Clause.127 As of 25 March 2023, there have only been two cases involving citations for COVID-related violations that have been decided by Administrative Law Judges for the Occupational Safety and Health Review Commission; none have yet been considered by the Commission or the appellate courts. The first case upheld a general duty citation and fine of $2926 against a small retail establishment in Mobile, Alabama, that had refused admittance to its store to customers wearing masks unless they removed them.128 The second vacated a citation against a Tribal health organization that provides services to patients across Alaska. The health organization had failed to provide its employees with certified respirators, and three employees were hospitalized.. While the judge raised significant concerns about technical questions regarding the citation, the case turned at least in part on the conclusion that SARS-CoV-2 was a droplet, not an aerosolized, risk – and that respirators are not required for droplet dissemination.129 This troubling conclusion reflects the positions taken by both CDC and OSHA (and WHO) that did not acknowledge the aerosol transmission of this kind of respiratory disease. Given that so few COVID-related citations have reached even this stage of litigation, it is too early to assess how these challenges will affect infectious disease enforcement activities in the future. Given the lack of specific standards, and continuing concern regarding workplace COVID exposures, OSHA announced in March 2022 a “highly focused, short-term inspection initiative directed at hospitals and skilled nursing care facilities” to “encourage employers in these industry sectors to take the necessary steps to protect their workers against the hazards of COVID-19.”130 Some specific essential sectors regulated by OSHA ●Health care sector As noted above, most of the federal OSH standard-setting and enforcement has been focused on this sector. OSHA is continuing to work on a COVID-related standard for health care workers as well as a broader airborne infectious disease standard for this industry. For the period JuneDecember 2021, health care facilities were required to comply with the healthcare ETS, and large numbers of inspections and citations were undertaken by OSHA under this standard. Pre-existing standards, including the standard governing respiratory protection, are also best suited to this sector. Further, most workers in this sector are subject to the CMS vaccine mandate, discussed 125 Bruce Rolfson, Covid-19 Still an OSHA Priority Even as Masking Guidance Changes, Bloomberg L. (Mar. 9, 2022), https://news.bloomberglaw.com/safety/covid-19-still-an-osha-priority-even-as-masking-guidancechanges. 126 Inspections with COVID-19 Related Violations, supra note 124. 127 Id. 128 Sec’y of Lab. v. Broken IPhone, LLC, 2022 CCH OSHD ¶ 33898 (OSHRC Docket No. 21-0289, 2022). 129 Sec’y of Lab.v. Alaska Native Tribal Health Consotrium, 2023 WL 2609545 (OSHRC Docket No. 21-0530, 2023). 130 Memorandum re: COVID-19 Focused Inspection Initiative in Healthcare, Dep’t of Lab., Occupational Safety & Health Admin. (Mar. 2, 2022), https://www.osha.gov/laws-regs/standardinterpretations/2022-03-02 (archived). This directive was revised and reissued July 7, 2021. See Occupational Safety Health Admin., Revised National Emphasis Program – Coronavirus Disease 2019 (COVID-19) (2021), https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-03_CPL_03.pdf 34 ILO Working Paper 92 below. Although this mandate was not OSH-focused, it nevertheless has provided extensive protection from COVID-19 to all workers in healthcare facilities. ●Food systems workers131 The pandemic hit the food system in the U.S. hard. Large clusters of cases were present in farms, food processing and meatpacking, as shown on this map compiled by the Food & Environment Reporting Network: 132 Meatpacking was hit particularly hard, and considerable public concern was focused on outbreaks in large meatpacking and processing plants. A review of the industry was conducted for the House Select Subcommittee on the Coronavirus Crisis: Following multiple reports of widescale coronavirus outbreaks within and around meatpacking facilities, the Select Subcommittee initiated an investigation into coronavirus infections and deaths in meatpacking plants, and failures by meatpacking companies and the Department of Labor’s Occupational Safety and Health Administration (OSHA) to safeguard workers against workplace coronavirus outbreaks in the first year of the pandemic. 131 For a discussion of the meat-packing industry and litigation surrounding it, see Alexia Brunet Marks, Essential But Ignored: COVID-19 Litigation and the Meatpacking Industry, 14 Ne. U. L. Rev. 47 (2022). 132 See Leah Douglas, Mapping Covid-19 Outbreaks in the Food System, Food & Env’t Rep. Network (Apr. 22, 2020), https://thefern. org/2020/04/mapping-covid-19-in-meat-and-food-processing-plants/ (data collected through Sept. 8, 2021). 35 ILO Working Paper 92 This investigation has revealed that the impact of the coronavirus on meatpacking workers’ health and safety was significantly worse than previously estimated. Newly obtained documents from five of the largest meatpacking conglomerates, which represent over 80 percent of the market for beef and over 60 percent of the market for pork in the United States3—JBS USA Food Company (JBS), Tyson Foods, Inc. (Tyson), Smithfield Foods (Smithfield), Cargill Meat Solutions Corporation (Cargill), and National Beef Packing Company, LLC (National Beef)—reveal that coronavirus infections and deaths among their meatpacking workers were substantially higher than previously estimated. While publicly available data already indicated high volumes of coronavirus infections and deaths at these companies, data from JBS, Tyson, Smithfield, Cargill, and National Beef obtained by the Select Subcommittee now show that: ●Across these five companies’ respective workforces, at least 59,000 meatpacking workers were infected with the coronavirus during the first year of the pandemic—almost triple the 22,700 infections previously estimated by the Food and Environment Reporting Network (FERN) for these five companies’ respective workforces based on publicly available information. ●At least 269 meatpacking workers lost their lives to the coronavirus between approximately March 1, 2020 and February 1, 2021—over three times higher than what was previously estimated by FERN for these five companies’ respective workforces.133 In spring 2020, responding to closures of some plants as a result of large disease clusters, President Trump invoked the Defense Production Act to order meatpacking plants to remain open, classifying the plants as critical infrastructure as a way to combat the strain that the pandemic was placing on the food supply chain – and without regard for worker health and safety.134 In August 2020, the CDC identified meatpacking plants as a source for “rapid transmission” of the coronavirus, and in August 2020, CDC issued a report showing that a single case of the coronavirus spread to 929 employees of a South Dakota meatpacking facility in just five weeks. At least two employees died. CDC explained that its findings “highlight the potential for rapid transmission of SARS-CoV-2 among employees in meat processing facilities.”135 During 2020, OSHA did cite a number of meatpacking facilities, but the penalties were extremely low. A letter from Congressman Clyburn to OSHA136 noted that OSHA had “issued only eight citations and less than $80,000 in penalties for coronavirus-related violations at meatpacking companies” in 2020. The letter went on: For example, on September 8, 2020, OSHA cited Smithfield Foods in Sioux Falls, South Dakota “for failing to protect employees from exposure to the coronavirus.” OSHA concluded that at least 1,294 Smithfield workers contracted the coronavirus, and four employees died. Yet the agency cited the company for just a single violation of the “general duty” of employers to “provide a workplace free from recognized hazards that can cause death or serious harm” and fined the company only $13,494. Although OSHA’s citation identified four distinct actions Smithfield failed to take to protect its workers, the agency lumped them together as a single violation and declined to classify the conduct as “willful”—decisions that reduced a potential $2.7 million penalty down to just a few thousand dollars. OSHA’s paltry fine, amounting to less than $11 per employee 133 H. Rep. Majority Staff of Select Subcomm. on the Coronavirus Crisis, 117th Cong., Memorandum on Coronavirus Infections and Deaths Among Meatpacking Workers at Top Five Companies Were Nearly Three Times Higher than Previous Estimates 1-2 (Oct. 27, 2021), https://coronavirus.house.gov/sites/democrats.coronavirus.house.gov/files/2021.10.27%20Meatpacking%20Report.Final_.pdf . 134 Exec. Order No. 13917, 85 Fed. Reg. 26313 (2020); see also Cong. Rsch. Serv., LSB 10456, Executive Order on the Food Supply Chain and the Defense Production Act: FAQs (2020). 135 Jonathan Steinberg et al., Ctr. for Disease Control and Prevention, COVID-19 Outbreak Among Employees at a Meat Processing Facility—South Dakota, March-April 2020, at 1016 (2020), www.cdc.gov/mmwr/volumes/69/wr/mm6931a2.htm?s_cid=mm6931a2_w. 136 Letter from James E. Clyburn, Chairman, Select Subcommittee on the Coronavirus Crisis, to James Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health (Feb. 1, 2021) https://coronavirus.house.gov/sites/democrats.coronavirus.house.gov/ files/2021-02-01.Clyburn%20to%20OSHA%20re%20Meatpacking%20Investigation_.pdf. 36 ILO Working Paper 92 infected with the virus and under $3,400 per employee who died, is unlikely to spur better worker safety at a company as large as Smithfield, which paid its Chief Executive Officer $14 million last year. While federal OSHA has become somewhat more aggressive in its pursuit of violations, workers in this sector continued to be at high risk as new variants of the virus arrived and vaccination rates varied, despite the availability of vaccines. Few citations have been issued. Moreover, as is discussed below in the section of this Report regarding litigation, several of the meatpacking companies have used the Trump order regarding the Defense Production Act to try to avoid common law liability for deaths that occurred in their plants. 137 Note that in the absence of any OSHA standard addressing infectious disease, this industry can only be regulated by federal OSHA under the standards that pre-existed the pandemic, using the general duty clause. This has made enforcement difficult and cumbersome. 3. MSHA & Mining Like OSHA, MSHA went into the pandemic in 2020 with existing standards relevant to worker protection: sanitation and hygiene138; training requirements that include training regarding new hazards139; workplace examinations requiring that a “competent person designated by the operator shall examine each working place at least once each shift before miners begin work in that place, for conditions that may adversely affect safety or health”140; ventilation requirements141; hazard communication, relevant to use of chemicals142; recording and reporting requirements for reporting work-related injuries and illnesses143and PPE.144 Because employers are always required to review the worksite for all hazards, and because MSHA is required (and funded) to perform comprehensive on-site inspections at every working covered worksite – quarterly for underground mines, biannually for surface facilities – MSHA was better positioned than OSHA to address COVID-related hazards from the beginning of the pandemic. In March 2020, CISA/DHS had designated mining as a critical infrastructure industry that states should keep open to help in the U.S. response to the pandemic.145 Because the Mine Act requires regular on-site inspections, MSHA could not legally restrict these inspections. But there was considerable concern that inspectors, traveling from one site to another, would be the source of disease spread. Some mines suspended operations, due to concerns about COVID-19, reduction in demand for their product, or because miners were testing positive for the coronavirus. At the same time, according to MSHA, approximately 100 of its 750 inspectors (13 percent) self-identified as high risk at the beginning of the pandemic and were unavailable to perform inspections. Moreover, many miners are at high risk for COVID-19 due to age or pre-existing conditions, such as black lung disease, and they often live in rural communities where medical facilities are limited. No requirement for vaccination has been in place for any part of the mining industry, and vaccination rates in these communities remained low; the vaccine mandates discussed below would have reached miners only if their employers were operating under federal contracts or subcontracts. 137 See infra Part II.D.6. 138 See 30 C.F.R. §§ 56.20003(a), 57.20003(a), 56.20008(b), 71.402, 75.1712–3 (1969). 139 30 C.F.R. §§ 46.1-12, 48.11, 48.23, 48.31. 140 30 C.F.R. §§ 56.18002, 18002, 77.1713, 75.360, 75.361, 75.362, 75.364. 141 30 C.F.R. § 75.325. 142 30 C.F.R. §§ 47.1-47.92. 143 30 C.F.R. § 50.1 (2006). 144 30 C.F.R. §§ 56.15006, 72.701 (1969). 145 Critical Infrastructure Sectors, Identifying Critical Infrastructure During COVID-19, Cybersecurity & Infrastructure Sec. Agency (Aug. 13,2022), https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19. 37 ILO Working Paper 92 MSHA therefore faced two parallel challenges: regular inspections are critical to maintaining safety standards in the industry; at the same time, new challenges created by the pandemic meant that workers and members of the inspectorate were at significant risk from SARS-CoV-2. On March 26, 2020, MSHA posted COVID-19 guidelines on its website, essentially following the CDC guidelines recommending masking, social distance, hygiene and quarantine/isolation. In addition, the guidance said MSHA would continue to perform its essential functions, including mandatory inspections, serious accident investigations, and investigations of hazard complaints (imminent danger or serious in nature); have inspectors maintain distance from miners while performing inspections, to the extent feasible; extend deadlines for certain required recertifications; encourage inspectors to participate on a voluntary basis in screenings or questionnaires conducted by operators; identify MSHA inspectors or other employees exhibiting symptoms through self-identification or potential exposure and ask them to quarantine at home; and limit the number of inspectors sent to a mine for regular inspection proportional with the mine’s operations, to the extent feasible if the mine operator alerted the agency to changes in production at a site. Responding to the designation of mining as critical infrastructure, the Office of the Inspector General (OIG), the investigatory arm of the Department of Labor, conducted an audit of MSHA’s response to the pandemic during the early days of the pandemic: “Given the risks to both miners and MSHA’s workforce, we conducted an audit to answer the following question: What plans and guidance has MSHA developed to address challenges created by COVID-19, and to what extent have these challenges affected MSHA’s ability to protect the safety of miners and its workforce?” The audit identified serious weaknesses in MSHA’s initial response including suspended or reduced enforcement activities; unavailable inspectors; delayed inspections due to safety concerns by the mining industry; and shortages of PPE. In addition, the audit noted that CDC and MSHA COVID-19 guidance were unenforceable as written. 146 MSHA officials told the OIG auditors that they were addressing pandemic issues under existing rules, including maintaining sanitary facilities and proper ventilation, having appropriate PPE for specific occupations or mine areas, and conducting examinations by mine personnel to identify hazardous conditions, such as overcrowded areas and inadequately sanitized surfaces. In addition, the Mine Act allows MSHA to address imminent dangers and allows miners to file hazard complaints. According to the information provided by MSHA in May 2020 for this audit, MSHA had investigated 119 hazardous condition complaints for COVID-19 related issues, resulting in 115 negative findings and 4 positive findings of violations, and had issued 62 citations for COVID-19 related issues, such as unsanitary conditions. The OIG report recommended that MSHA monitor any potential backlog of suspended and reduced enforcement activities; develop a plan to manage the backlog once full operations resumed; monitor COVID-19 outbreaks at mines; and use that information to reevaluate the decision not to issue an emergency temporary standard related to the pandemic. Data specific to COVID outbreaks in the mining industry are not available. MSHA did not issue an emergency temporary standard, despite authority to do so under Section 101(b) of the MSHAct, 30 U.S.C. § 811. The United Mine Workers of America and the United Steelworkers filed a petition asking a federal court to order MSHA to issue an emergency standard in June, 2020.147 146 Dp’t Of Lab., Off. of Inspector Gen. – Off. of Audit, No. 19-20-006-06-001, COVID-19: MSHA Faces Multiple Challenges in Responding to the Pandemic, (Jul. 24, 2020), https://www.oig.dol.gov/public/reports/oa/2020/19-20-006-06-001.pdf. 147 See Press Release, UMWA, UMWA, USW Sue MSHA to Force Action to Protect Miners from COVID-19 (Jun. 16, 2020), https://umwa. org/news-media/press/umwa-usw-sue-msha-to-force-action-to-protect-miners-from-covid-19/. 44 ILO Working Paper 92 of the state legislature.185 This means that essential workers who have developed the disease after exposure at work do not have to provide, at the initiation of a claim for benefits, proof that they contracted the disease at work. Although this is a rebuttable presumption, they should be much more likely to receive workers’ compensation benefits than in other states. Comprehensive data regarding these claims is maintained by the California Workers’ Compensation Institute (CWCI) and is posted on a publicly facing website. Despite the existence of the broad presumption, the data show that over 30 per cent of COVID claims have consistently been denied.186 Further analysis has been done and reported in the Annals of the American Thoracic Society for the period through calendar year 2023: More than 80,000 COVID-19 workers’ compensation (WC) claims were reported; at their peak in December 2020, monthly COVID-19 claims (n=43,705) exceeded non-COVID-19 WC claims (n=39,842) and approached the total number of WC claims in December 2019 (n=48,285). In addition, the impact of COVID-19 was felt across industrial sectors. The most common industries for COVID-19 claims through October 2021 were healthcare (29.9%), public safety/government (18.7%), retail (10.2%), manufacturing (7.1%), transportation (6.9%), food services (4.8%), and administrative and waste management (3.9%). Statewide, workplace outbreaks have occurred in every sector. During the first six months of the pandemic in Los Angeles County (the state’s largest local health jurisdiction), the most frequent sectors for nonresidential, non-healthcare workplace outbreaks were manufacturing, retail trade, and transportation and warehousing. Among the suspected work-related COVID-19 deaths, the study found that the greatest number occurred in healthcare settings other than hospitals, followed by public administration (which includes justice, public order, and safety activities), manufacturing, retail trade, hospitals, and transportation and warehousing. 187 In summary, in reviewing case studies of states, California has been a leader in OSH intervention, compensation, and in data collection and reporting. Case study of Arizona Like California, Arizona is a state-plan state and is therefore entirely responsible for OSH enforcement within the state. In sharp contrast to California, however, Arizona’s approved state OSH system is designed, at best, to mirror the federal regulatory system. No OSH-specific rules or orders relevant to essential workers were issued during the pandemic. Protections, to the extent they were available, had to come under previously existing OSHA standards and general public health orders. The governor issued a series of emergency orders, beginning in March 2020. The governor’s stay-at-home advisory on March 13, 2020 required businesses designated as essential to implement social distancing and sanitation measures.188 On March 25, 2021, the governor signed another order making all COVID-related safety requirements for businesses into non-enforceable “recommendations,”189 although the state continued to have the responsibility to enforce existing OSH standards. The governor had issued an executive order in 2015, which has been renewed annually, 190 noting that regulations “inhibit job growth and economic development,” and requiring the governor’s prior written approval for new rules; approval would only to be granted under certain listed 185 Cal. Lab. Code § 3212.86 (West 2023). 186 COVID-19 & Non-COVID Interactive App, Cal. Workers’ Comp. Inst. (2023), https://www.cwci.org/CV19claims.html. 187 Kristin J. Cummings et al., COVID-19 in the Workplace: The View from California, 19 Annals of the Am. Thoracic Soc’y 1260, 1260 (2022), https://doi.org/10.1513/AnnalsATs.202112-1334VP . 188 State of Ariz., Exec. Order No. 2020-18, Stay Home, Stay Healthy, Stay Connected (2020), https://azgovernor.gov/sites/default/files/ eo_2020-18_stay_home_stay_healthy_stay_connected_1.0.pdf. 189 State of Ariz., Exec. Order No. 2021-06, New Phase of COVID-19 Mitigation (2020), https://azgovernor.gov/sites/default/files/eo_202106.pdf. 190 State of Ariz., Exec. Order No. 2021-02, Moratorium on Rulemaking to Promote Job Creation and Economic Development; Internal Review of Administrative Rules (2021), https://azgovernor.gov/file/37102/download?token=ad95CBOK . 45 ILO Working Paper 92 circumstances. Although this order specifically allowed for rules to address “a significant threat to public health, peace or safety,” it does not appear that the state OSH agency submitted any rules relevant to the pandemic. Arizona demonstrated its resistance to more protective measures in a variety of other ways. The state failed to adopt either ETS issued by OSHA during the pandemic. In written notice to the Industrial Commission of Arizona on October 19, 2021, OSHA said it was “reconsidering” its approval of Arizona’s OSHA State Plan191 because of Arizona’s failure to fully adopt the healthcare ETS or an “at least as effective as” alternative.192 The Governor maintained that the state was working on compliance, as he blasted OSHA, “The federal government’s threat to strip the ICA [Industrial Commission of Arizona] of its OSHA authority is nothing short of a political stunt and desperate power grab…”193 At this point, there are no longer any federal requirements regarding COVID that can be imposed on state plan states like Arizona, since the health care ETS expired in December 2021 and the vaccinate-or-test mandate was eliminated by the Supreme Court in early January 2022. Removal of state-plan status is a cumbersome process – and, in fact, federal oversight of state plans is troublingly limited. In April 2022, OSHA formally announced that it would move ahead to revoke its approval of the Arizona State Plan.194 It then rescinded that announcement in February 2023 based on assurances from Arizona that it would comply with federal requirements, “despite recent public reports of a downward trend in inspections in the plan's enforcement program.” 195 It is impossible to assess the current effectiveness of the Arizona plan. Arizona was also an epicenter of anti-vaccine agitation. The state was a plaintiff in the case, ultimately successful, that was brought to nullify the OSHA vaccine-or-test mandate. The governor issued an order in April 2021 essentially banning requirements for vaccines for workers and for entry into public places (but carving out an exception for hospitals).196 On August 16, 2021, the governor issued an order which prohibits political subdivisions of the state from implementing vaccine mandates.197 No information is available regarding OSH enforcement in essential sectors in Arizona during the pandemic. On May 15, 2020, the Industrial Commission of Arizona issued an advisory policy statement regarding COVID-19 workers’ compensation claims indicating that claims could not be 191 Noam Scheiber, OSHA, Citing Covid Failures, Moves to Strip Three States of Workplace Safety Authority, N.Y. Times (Oct. 19, 2021), https://www.nytimes.com/2021/10/19/business/economy/osha-covid-workplace-safety-states.html . 192 Notice of the formal OSHA action can be found here: View Rule, Off. of Info. & Regul. Aff. (Fall 2021), https://www.reginfo.gov/public/ do/eAgendaViewRule?pubId=202110&RIN=1218-AD43 . 193 Ivan Pereira, Largest Nurses Union Applauds Possible OSHA Action Against 3 States Over PPE, ABC News (Oct. 20, 2021), https:// azgovernor.gov/governor/news/2021/10/governor-ducey-statement-osha-overreach (quoting Governor Ducey’s statement on OSHA overreah). 194 Arizona State Plan for Occupational Safety and Health; Proposed Reconsideration and Revocation, 87 Fed. Reg. 23783 (2022). In its summary of the Proposed Rule, OSHA noted, “If revocation is determined to be appropriate, the Arizona State Plan will revert to initial approval and Federal authority for discretionary concurrent enforcement would resume, allowing Federal OSHA to ensure that private sector employees in Arizona are receiving protections that are at least as effective as those afforded to employees covered by Federal OSHA.” Id. In February of 2023, OSHA withdrew its proposal to revoke, leaving the state plan in place. US Department of Labor Announces Plan to Withdraw Proposal to Reconsider, Revoke Arizona State OSHA Plan’s Final Approval, Dep’t of Lab., Occupational Safety & Health Admin. (Feb. 14, 2023), https://www.osha.gov/news/newsreleases/national/02142023. 195 Press Release,“US Department of Labor announces plan to withdraw proposal to reconsider, revoke Arizona State OSHA Plan's final approval” https://www.osha.gov/news/newsreleases/national/02142023. 196 State of Ariz., Exec. Order No. 2021-09, Prohibiting Political Jurisdictions of the State from Requiring the Disclosure of an Individual’s COVID-19 Vaccine Status (2021), https://azgovernor.gov/sites/default/files/eo_2021-09.pdf. 197 State of Ariz., Exec. Order No. 2021-18, Returning to Our Principles of Governance (2021), https://azgovernor.gov/sites/default/files/ eo_2021-18.pdf.https://azgovernor.gov/executive-orders 46 ILO Working Paper 92 categorically denied and had to be “investigated in good faith,” “well-grounded in fact” and “warranted by existing law.”198 In a subsequent statement, the Commission wrote: “Recognizing the difficulties workers who are affected by COVID-19 face, the Commission asks the carrier and self-insured employer community to be especially diligent when investigating and reviewing claims filed by first responders, healthcare workers, and frontline employees who have developed COVID-19.”199 No presumption was created for these claims, however, and the claimant bears the burden of proof to show that the disease is work-related. No data are provided by the state agency responsible for compensation claims regarding these issues. Moreover, the state withdrew early from an enhanced unemployment compensation program on July 10, 2021 (the program was set to expire in September 2021). According to one news report, “Gov. Doug Ducey said the state would stop accepting the extra weekly payments from the federal government in an effort to push unemployed people to get back to work. ‘In Arizona, we’re going to use federal money to encourage people to work…instead of paying people not to work’, Ducey said in a statement in May, when he announced his Arizona Back to Work Program.”200 Arizona does participate in the Medicaid expansion program. In sum, the politics of Arizona, despite the approved state OSHA plan, have meant that essential workers have received poor protections from OSH risks and have also been denied some enhanced social support benefits that were available. Non-state plan OSHA states Case study of Massachusetts The Commonwealth of Massachusetts is not a designated state-plan state. Federal OSHA is therefore generally responsible for OSH enforcement in the state, and the existing governmental structures for OSH enforcement are, as a result, relatively weak. Despite a liberal reputation, the state has a limited history of worker OSH protection and had a Republican governor throughout the pandemic. It currently has a relatively new state OSH law governing all state, county and municipal public sector workers201 and in mid-2022 received approval for state-plan status from federal OSHA for the public sector only.202 The governor was one of the first to issue a series of COVID-related emergency public health orders that ordered the closure of non-essential businesses while requiring a long list of essential “brick and mortar” businesses to stay open (while complying with CDC guidelines). These included healthcare, security, food and agriculture, the energy sector, transportation and logistics, 198 Indus. Comm’n of Ariz., Substantive Policy Statement: COVID-19 Workers’ Compensation Claims (2020), https://www.azica.gov/sites/ default/files/SPS%20-COVID-19%20FINAL.pdf. 199 Adjusting COVID-19 Workers’ Compensation Claims, Indus. Comm’n of Ariz. (May 14, 2020), https://www.azica.gov/sites/default/files/ COVID%20SPS.pdf . 200 Diannie Chavez, Pandemic Unemployment Relief Ends, Cutting Off 45,000 Jobless in State, Cronkite News (Sept. 6, 2021), https:// cronkitenews.azpbs.org/2021/09/06/pandemic-unemployment-relief-ends-cutting-off-45000-jobless-in-state/#:~:text=It%20was%20 extended%20in%20March,the%20state%20on%20July%2010 . 201 Mass. Gen. Laws ch. 149 § 6½ (2019). 202 For the formal announcement regarding the application for state plan status, see View Rule, Off. Of Info. & Regul. Aff. (Fall 2021), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1218-AD41 (“Abstract: The Massachusetts Department of Labor is working toward submitting a developmental State Plan for occupational safety and health, applicable only to state and local government employment, for determination of initial approval under section 18 of the OSH Act. OSHA will be publishing a Notice of Proposed Rulemaking and soliciting written comment on whether or not initial State Plan approval should be granted and offering an opportunity to interested persons to request an informal public hearing on the question of initial State Plan approval.”). For announcement of approval, see U.S. Labor Department’s Initial Approval Gives Massachusetts’ State Plan Responsibility for Protecting Safety, Health of Public Workers, U.S. Dep’t of Lab., Occupational Safety & Health Admin. (Aug. 17, 2022), https://www.osha.gov/news/ newsreleases/trade/08172022#:~:text=The%20Massachusetts%20State%20and%20Local,18%2C%202022 . 47 ILO Working Paper 92 communications and IT.203 Reopening followed a four-stage plan, and called for ending restrictions when vaccines became widely available.204 With the exception of remaining face-covering requirements for public and private transportation systems and facilities housing vulnerable populations, all industry restrictions were lifted as of May 2021, and capacity increased to 100% for all industries. All industries were encouraged to follow CDC guidance for cleaning and hygiene protocols. Many municipalities retained restrictions beyond this date, however, and there was no attempt by the governor to limit any public health actions taken by local governments. The orders issued by the governor largely focused on the public, not on workplace health and safety or the needs of critical workers. Unions and advocacy organizations pressured for more workplace-specific protections. In the absence of any federal OSHA standard, the state was free to regulate COVID-19 as a workplace hazard in both the private and nonfederal public sector – although it remained within federal OSHA’s enforcement territory. In theory, the Department of Labor Standards (DLS) was responsible for enforcement of workplace regulations. With a very small staff – in part the result of the fact that Massachusetts is not a state-plan state – DLS initially had a hard time responding to concerns. Complaints about both safety and retaliation mushroomed, and the state Attorney General’s office, which is responsible for enforcement of wage and hour laws, stepped up to handle many of these complaints. As of August 31, 2020, they had handled 3692 COVID-related workplace health and safety matters before wrapping up their Health and Safety Task Force and turning the responsibility back to DLS.205 In the absence of any action by federal OSHA in the early days of the pandemic and an initially sluggish response from DLS, local public health agencies became the focus for addressing workplace COVID-19 workplace clusters. There are 351 municipalities in Massachusetts. Each municipality is responsible for protecting the public's health in its community. They are charged with addressing a wide range of public health issues, including disease case management and disease surveillance – and they are small and poorly funded. 206 Nevertheless, local boards of health made efforts to respond to COVID outbreaks in workplaces. For example, in the town of New Bedford, which has a relatively large seafood processing industry, the local board of health posted a wide range of information 207 and issued a series of emergency orders,208 including ordering these facilities to shutdown as a result of outbreaks of the virus.209 203 For a full list of COVID-related executive orders in Massachusetts, see COVID-19 Essential Services, Exhibit A of the Order of the Governor Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces and Prohibiting Gatherings of More Than 10 People, Commonwealth of Mass. (Mar. 23, 2020), https://www.mass.gov/doc/covid-19-essential-services/ download. Note that the public health orders in Massachusetts correlated with the ILO list of essential sectors. 204 As described on the state’s website, Phase I (“Start”) of the plan began on May 18, 2020, and allowed manufacturing facilities, construction sites, and places of worship to re-open. Hospitals and community health centers were able to begin to provide high priority preventative care, pediatric care and treatment for high-risk patients. Phase 2 (“Cautious”) began in June 2020 and allowed additional lower risk businesses to reopen, including retail, childcare facilities, restaurants (with outdoor table service only), hotels and other lodgings, personal services without close physical contact, youth and adult amateur sports, and driving and flight schools. Health care providers also incrementally resumed in-person elective, non-urgent procedures and services, including routine office visits, dental visits and vision care subject to compliance with public health and safety standards. On July 6, 2020, the state moved to Phase III (“Vigilant”) based on a sustained decline in key public health data, such as new cases and hospitalizations. A broad range of sectors were permitted to open, again subject to compliance with industry-specific rules concerning capacity and operations, including movie theaters and outdoor performance venues; museums, cultural and historical sites; fitness centers and health clubs; certain indoor recreational activities with low potential for contact; and professional sports teams (without spectators). Massachusetts moved into Phase IV (“New Normal”) on March 22, 2021 with indoor and outdoor stadiums, arenas, and ballparks permitted to open at 12 percent capacity, and exhibition and convention halls also beginning to operate. See Reopening Massachusetts, Commonwealth of Mass., https://www.mass.gov/info-details/reopening-massachusetts (last visited Feb. 20, 2023). 205 Email from Jodi Sugarman-Brozan, Exec. Dir., MassCOSH, Member, DLS Advisory Comm., to Att’y Gen. (Mar. 15, 2022) (providing data regarding complaints). 206 For information regarding local public health departments in Massachusetts, see Supporting Local Health Departments, Mass. Pub. Health Assoc., https://mapublichealth.org/covid19local/ (last visited Feb. 20, 2023). 207 COVID-19 Updates, New Bedford Health Dep’t, https://www.newbedford-ma.gov/health-department/coronavirus/ (last visited Feb. 20, 2023). 208 See, e.g., Mayor Jon Mitchell & Dr. Patricia Andrade, Emergency Order for Reporting Covid-19 at Worksites (May 5, 2020), https:// s3.amazonaws.com/newbedford-ma/wp-content/uploads/20200506082240/Emergency-Order-Reporting-COVID-in-the-Workplace. pdf. 209 Email from Thomas Smith, Co-Founder and Exec. Dir., Justice at Work, to author (Nov. 15, 2022). 48 ILO Working Paper 92 Facing pressure regarding the need for further state protections, DLS issued a COVID-19 Workplace Safety regulation in mid-2020. The regulation covered “Any person providing paid or unpaid service to an enterprise at a brick-and-mortar premises including, but not limited to, any employee, contract worker, volunteer, temporary employee, or worker,” and incorporated by reference all orders issued by the governor that were sector-specific. Exempted from coverage under the rule were the courts, correction facilities, childcare facilities, and pre-college educational institutions (“K-12”). Substantively, the regulation provided for: an employer-generated “written control plan”; social distancing; hygiene protocols; cleaning and disinfecting; posting of notices; and immediate notification to the local board of health in the event a worker tested positive. Workplaces were required to self-certify compliance. The rule contained a specific prohibition against retaliation. Enforcement was assigned to DLS or local boards of health; in the event of an inspection, both employer and worker representatives were permitted to accompany the inspector.210 DLS reported state-wide enforcement both before the rule was promulgated and continuing throughout the pandemic. Reports to the DLS Advisory Committee indicated that hundreds of cases were opened. Initially, cease and desist orders were issued against businesses that remained open despite the closure orders issued by the governor. Over the course of the pandemic, DLS undertook more than 2000 enforcement activities, targeting both businesses that were unlawfully opened during shutdown orders as well as violations of the COVID-19 workplace regulation; 173 written warnings were issued against essential businesses under the regulation.211 DLS rescinded the Workplace Safety rule after public hearing on July 21, 2021, over the angry objections of dozens of public health experts, unions and other worker advocacy organizations. No explanation was offered for this action. There are now no regulations currently enforced by DLS that are specific to the pandemic, in either the public or the private sector. DLS is also responsible for enforcing the public sector Massachusetts health and safety law. Under the terms of the state law, all standards issued by OSHA were supposed to be enforced by DLS for the public sector. DLS disputed its obligation to follow the federal health care ETS, and it is not clear that there was any effort to enforce the ETS for health care facilities during 2021. As of March 2023, of course, there are no specific COVID-related federal standards in effect. The public sector state plan received OSHA approval in mid-2022, and the state now has a clear obligation to enforce federal standards. Of course, as of the close of 2022, there are no COVID-specific federal standards. Given the role played by DLS and local boards of health, the role of federal OSHA was arguably less important in Massachusetts than in other federal OSHA states such as Mississippi, discussed below. Over the course of the pandemic, through March 11, 2022, OSHA had issued 25 COVIDrelated citations against Massachusetts employers, recommending a total of $432,564 in penalties. All but six of these were in healthcare, including residential care facilities; the remaining were issued against an organization providing transitional training for people leaving correctional institutions, manufacturing and shipping, one small office (that had forbidden workers and customers to wear masks), the postal service, and one staffing agency for hospitality and food services. Arguably, all of these citations involved critical frontline workers and workplaces. As of December 21, 2022, an additional 39 inspections had been completed, with a total of an additional $599,607 in penalties; again, all but two of these inspections involved health care or residential facilities, and the remaining two involved general duty citations against the US Postal Service.212 The increase in the number of inspections undoubtedly reflects the commitment of OSHA to expand enforcement under the COVID Special Emphasis Program. 210 454 Mass. Code Regs. 31 (2021). 211 Email from Jodi Sugarman-Brozan, Exec. Dir., MassCOSH, member, DLS Advisory Committee, to author (Mar. 15, 2022) (providing data from DLS regarding enforcement activities). 212 See Inspections with COVID-19 Related Violations, supra note 124. 49 ILO Working Paper 92 With regard to workers’ compensation, numerous bills were introduced in the state legislature to create a presumption of causation, but none were passed. No action was taken by the governor to institute any special rules for COVID-related diseases. The Massachusetts law on occupational disease compensation is relatively stringent. Nevertheless, according to data provided to the Advisory Committee to the Massachusetts Department of Industrial Accidents, a substantial number of these claims have been paid, primarily – though not exclusively – to workers in the healthcare sector.213 With regard to other social supports: Massachusetts has relatively strong state-based protections for paid leave, unemployment compensation, and subsidized health insurance. In sum, Massachusetts sits squarely in the middle among states – more attentive to essential workers than most states without state plans, but nevertheless reluctant to continue vigilant OSH enforcement as the pandemic has dragged on. Case study of Mississippi Mississippi is among the poorest states. Poverty in the state is exacerbated by the fact that Mississippi has not adopted any minimum wage to cover workers in the state who are not protected by federal law – and federal law only guarantees $7.25 per hour for non-tip employees. It is also a state with a large Black population (38 percent)214 when compared to the national average (13.6 percent).215 Mississippi does not have a state OSH plan, and has no laws providing OSH coverage for public state and local employees. It thus stands at the other end of the spectrum from California in terms of protection for essential workers during the pandemic. The governor issued orders creating a state of emergency at the onset of the pandemic, closing all but essential businesses, and adopting CDC guidelines. But this was rapidly followed by re-opening of non-essential businesses in May 2020 provided that they followed industry-specific guidance and made reasonable, good-faith efforts to comply with the CDC guidelines. Requirements for masking were initially instituted for public health protection and rescinded in March 2021. On July 10, 2020, the governor issued an order covering specified counties that required businesses to screen all employees prior to beginning their shift and to provide hand sanitizer to employees, while requiring employees to wear appropriate personal protective equipment based on their duties and responsibilities. The state public health department also posted useful information regarding the pandemic.216 But no OSH-specific actions to protect vulnerable critical workers were taken by the state during the entire course of the pandemic. Limitations on civil liability relating to the pandemic were enacted in July 2021, providing immunity from common law actions related to COVID-19 exposure to any person who attempts in good faith to follow applicable public health guidance.217 The governor pushed back hard on any vaccine mandates, calling the attempt by OSHA to require vaccines in the private sector tyrannical and unconstitutional.218 In June 2021, the state pulled out of expanded federal unemployment benefits which were not to expire until September. 213 Email from Nancy Lessin, DIA Advisory Comm. Member, to author (Dec. 6, 2022). 214 U.S. Census Bureau, Quick Facts, Mississippi, https://www.census.gov/quickfacts/MS (last visited Mar. 26. 2023). 215 U.S. Census Bureau, Quick Facts, United States, https://www.census.gov/quickfacts/fact/table/US/PST045221 (last visited Mar. 26, 2023) 216 Coronavirus Disease 2019 (COVID-19), Miss. Dep’t of Health (Feb. 15, 2023), https://msdh.ms.gov/msdhsite/_static/14,0,420.html. 217 Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act, Miss. Code Ann. § 1171-1 (2021). 218 Tate Reeves (@tatereeves), Twitter (Sept. 9, 2021, 5:39 PM), https://twitter.com/tatereeves/status/1436081918982897667?lang=en. 50 ILO Working Paper 92 At the same time, federal OSHA reports only thirteen total inspections relating to COVID in Mississippi between the onset of the pandemic and December 21, 2022, with total proposed penalties of only $161,248. Ten of these involved health care institutions; one involved a failure to record injuries and illnesses at a manufacturing plant; two involved failures to report fatalities, presumably COVID-19 deaths.219 Anecdotally, worker advocates in Mississippi report that fear of retaliation prevents workers from raising concerns to OSHA and other federal and state agencies. Mississippi also lags other states in the provision of social welfare supports in general: Low-income Mississippi residents face significant challenges in accessing affordable health care. Despite a high rate of uninsured people, and the fact that one in five Mississippi residents live in poverty, Mississippi is one of the states that has not expanded the Medicaid program under the ACA, and the state does not provide health care coverage for nondisabled childless adults under age 65, regardless of income level.220 As in Arizona, the governor announced that he was withdrawing the state early from pandemic-related federally sponsored unemployment programs after June 12, 2021.221 The public justification for this was to encourage people to return to work: "It has become clear to me that we cannot have a full economic recovery until we get the thousands of available jobs in our state filled," the governor said.222 No special provision was adopted to address workers’ compensation claims relating to COVID-19. In Mississippi, an occupational disease is deemed compensable “when there is evidence that there is a direct causal connection between the work performed and the occupational disease,” and the claimant must provide medical proof that the job caused or contributed to the development of the disease in a significant manner. No data are available regarding payment for COVID-related claims. The state is also an example of a jurisdiction where a range of compensation-limiting statutory enactments have limited access to benefits. These include reduction of compensation when a preexisting condition contributes to the disability and a prohibition on payment of benefits to any worker who tests positive for an illegal drug. In sum, essential workers in Mississippi were left without any real OSH protection from COVID-19 during the pandemic. D. COVID-related litigation brought by individuals, activists and unions Private parties have brought a range of litigation in an attempt to improve the health and safety of workers who were exposed to the coronavirus at work. This litigation falls into a number of categories, enumerated below. Note that this is not a fully exhaustive list of all COVID-related litigation in the U.S. Rather, this list focuses on efforts to improve workplace safety through creative use of the law. There has also been considerable (and creative) litigation challenging public health agency orders, which has been described elsewhere. 223 In addition, many additional individual cases have been filed 219 See Inspections with COVID-19 Related Violations, supra note 124. 220 Adam Striar et al., Medicaid Expansion in Mississippi — What’s at Stake, The Commonwealth Fund (Feb. 3, 2022), https://www. commonwealthfund.org/blog/2022/medicaid-expansion-mississippi-whats-stake#:~:text=Since%202014%2C%20states%20have%20 had,90%20percent%20of%20the%20cost. 221 Resources for Workers and Businesses on COVID-19, Miss. Dep’t of Emp. Sec. (Jun. 8, 2021), https://mdes.ms.gov/unemploymentclaims/covid19/. 222 Keisha Rowe, Mississippi to End Additional Federal Unemployment Benefits in June, Governor Says, Miss. Clarion Ledger (May 10, 2021), https://www.clarionledger.com/story/news/local/2021/05/10/pandemic-unemploymentassistance-benefits-end-june-mississippi/5028758001/. 223 See also Wendy Parmet & Faith Khalik, Judicial Review of Public Health Powers Since the Start of the COVID-19 Pandemic: Trends and Implications, 113 Am. J. Pub. H. 280 (March 2023) (providing an overview of litigation involving orders issued by public health agencies during the pandemic), available online https://doi.org/10.2105/AJPH.2022.307181. 51 ILO Working Paper 92 involving claims of individual retaliation for asserting rights using a range of theories, including claims filed by workers who have challenged employers’ vaccine mandates. Thousands of these claims have been filed, and this Report makes no attempt to provide an exhaustive and inclusive summary of them. As of March 2023, many cases are still pending, in both trial and appellate courts. The full story of COVID-related litigation cannot yet be told. 1. Efforts to force agencies to act Individuals and unions have brought actions that sue OSHA and state agencies, asking for immediate issuance of rules or more aggressive enforcement. For example, workers and advocates in a Maid-Rite Specialty Foods plant in Pennsylvania sought a Writ of Mandamus to compel OSHA to seek a court order directing Maid-Rite to take steps to abate imminent dangers to its employees related to the transmission of COVID-19. Notably, OSHA has rarely used its power regarding imminent danger closures, which under the OSHAct are only available if the agency applies to a federal court for an order. Here, the workers were attempting to compel OSHA to seek this order. The lower court concluded that, where there had been no request from an OSHA inspector that an imminent danger order be sought, the court lacked jurisdiction to proceed.224 On review, the Court of Appeals also refused to issue the order against OSHA. Although the appellate court agreed with the workers that the court might have the authority to order OSHA to take action, this authority would cease to exist at the point that OSHA completed its enforcement activities. Here, OSHA had concluded its standard enforcement proceedings against Maid-Rite and declined to issue a citation. The case was closed, and therefore, the court reasoned, it could not compel OSHA to act.225 Two related cases were also filed attempting to persuade courts to instruct OSHA to issue standards to limit exposure to coronavirus in the health care sector. In October 2020, nurses, teachers and others filed an application for a Writ of Mandamus, seeking an emergency temporary standard regarding transmission of infectious diseases to protect health care workers.226 The case was placed in abeyance after the new administration promised to move quickly to issue a rule.227 In January 2022, after the ETS was withdrawn at the end of six months, the same groups filed another application, asking the court to order OSHA to issue a permanent health care standard within 30 days of the granting of the writ and to enforce the healthcare temporary standard until it is “properly superseded” by a permanent standard. Eight months later, on August 26, 2022, the court dismissed the petition, holding that OSHA’s decision not to continue to enforce the ETS did not violate a clear duty to act, nor did OSHA have a duty to either issue a permanent standard. 228 As of March 2023, as noted above, OSHA was still planning to issue a standard governing exposure to the coronavirus in the health care industry, but had not yet done so. 2. Efforts to force employers to improve workplace safety Workers, unions and allied advocates have sought workplace protections from transmission of the coronavirus, attempting to bypass the OSH administrative structure by relying on two statebased legal theories: public nuisance doctrine and the right to a safe workplace guaranteed either by statute or common law. In these cases, the workers sought only injunctive relief to force employers to adopt safety protocols, thus avoiding the bar on damages for workplace injuries that is well-established in most states under workers’ compensation laws. 224 Does I, II, III v. Scalia, 530 F.Supp.3d 506, 508 (M.D. Pa. 2021). 225 Doe I v. Scalia, 58 F.4th 708 (3rd Cir. 2023). 226 Petition for Writ of Mandamus, In re Am. Fed’n of Tchr. v. Occupational Safety & Health Admin., No. 20-73203, 11875280 (9th Cir. 2020) (Democracy Forward). 227 Joint Motion to Remove Case from Oral Argument Calendar and Place Case in Abeyance, Am. Fed’n of Tchr. v. Occupational Safety & Health Admin, No. 20-73203 (9th Cir. 2021) (Democracy Forward). 228 In re Nat’l Nurses United, 47 F.4th 746, 757 (D.C. Cir. 2022). 52 ILO Working Paper 92 The first case of this kind was filed on April 23, 2020 – early in the pandemic – against Smithfield Foods Inc., operating a meatpacking plant in Missouri.229 The worker and advocates alleged that, because the plant was not abiding by the CDC/OSHA/USDA guidance, it constituted a public nuisance230 and created an unreasonably unsafe workplace.231 The court rejected the workers’ request for injunctive relief, ruling that the issue came under Missouri’s “primary jurisdiction doctrine,”232 noting that the claims would succeed or fail based on whether the plant was complying with guidance issued by the federal agencies. Therefore, the court reasoned, “Due to its expertise and experience with workplace regulation, OSHA (in coordination with the USDA per the Executive Order) is better positioned to make this determination than the Court is.”233 Following the dismissal of the Smithfield case in Missouri, similar cases were filed elsewhere. Results – and analysis of the plaintiffs’ theories – have varied. The reluctance of the Smithfield Foods court to enter into a discussion regarding workplace safety was echoed by another federal judge in a Texas case that was brought against Pilgrim Pride, also a meat processing company:234 Not only would the judges have had to fashion workplace safety protocols, but they would have had to figure out a way to enforce those protocols. Such a task requires expertise in workplace health and safety, as well as administrative flexibility. Because the plaintiffs in those cases were requesting injunctive relief, they needed an adjudicator who could tell the companies, for instance, how often employees needed to sterilize common surfaces. In those cases, the district judges found that OSHA was better suited to perform that function.235 Of course, plaintiffs also need to convince the court that they have standing to sue. A case in Nebraska against Noah’s Ark Processing was dismissed when the court held that former employees from the beef processing plant could not assert any on-going rights to a safe workplace.236 The argument that heightened exposure to Covid-19 within workplaces constituted a public nuisance was specifically rejected in cases against FedEx237 and Walmart238 in California, and against an Amazon warehouse (“fulfillment center”) in Staten Island, New York.239 In both New York and California, private citizens can only bring public nuisance claims if they can show “special injury” – that is, that they were subject to injury that is different in kind, not just degree, from the risk to 229 See Rural Cmty. Workers All. v. Smithfield Foods, Inc., 459 F.Supp.3d 1228, 1232 (W.D. Mo. 2020). There is no record of an appeal from this lower court decision. 230 Id. at 1244 (“Under Missouri law, ‘a public nuisance is an offense against the public order and economy of the state and violates the public's right to life, health, and the use of property, while, “at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons.”’ (State ex rel. Schmitt v. Henson, ED 107970, 604 S.W.3d 793, 800 (Mo. Ct. App. April 14, 2020) (citations omitted).”). 231 Id. (“Under Missouri law, Plaintiffs must prove that Smithfield negligently breached its duty to provide a safe place to work and that such negligence was the direct and proximate cause of the Plaintiffs injuries.”). 232 Id. at 1240 (“Before reaching the merits of Plaintiffs’ request for a preliminary injunction, the Court must determine whether it should dismiss or stay this case pursuant to the primary-jurisdiction doctrine. ‘Primary jurisdiction is a common-law doctrine that is utilized to coordinate judicial and administrative decision making . . . The doctrine allows a district court to refer a matter to the appropriate administrative agency for ruling in the first instance, even when the matter is initially cognizable by the district court.’”) (quoting Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605, 608 (8th Cir. 1998)). 233 Id. at 1240-41. 234 Requena v. Pilgrim's Pride Corp., No. 9:20-CV-00147-ZJH, 2021 WL 2099312, at *1 (E.D. Tex. Apr. 1, 2021). 235 Id. at *5. 236 Alma v. Noah's Ark Processors, No. 4:20-CV-3141, 2021 WL 781287, at *1-3 (D. Neb. Dec. 9, 2021) (“According to the plaintiffs, Noah's Ark has not taken measures needed to protect its employees from COVID-19. . . . But the plaintiffs are not employees of Noah's Ark— instead, they're former employees, along with a local doctor. See filing 1 at 3-5. While the Court does not question their sincere concern for the well-being of Noah's Ark's employees, the Court finds that they lack standing to assert the claims they have alleged, and will dismiss their complaint. . . . The plaintiffs’ alleged injuries are neither concrete nor particularized: the gist of their claim to standing is that there could be another COVID-19 outbreak at Noah's Ark, and that could cause widespread disease in the community in which they live, and that could endanger them and affect the community.”). 237 Sprewell v. Fed. Express Corp., No. 2:20-cv-11612-SVW-AGR, 2021, WL 4706703, at *2 (D.C. Cal. Sept. 30, 2021). 238 Wicker v. Walmart, Inc., 533 F. Supp. 3d 944, 948-49 (D.C. Cal. 2021). 239 Palmer v. Amazon.com, 51 F.4th 491, 503 (2d Cir. 2022). 53 ILO Working Paper 92 the public at large.240 In New York, the plaintiffs contended that their lack of autonomy to avoid exposure to the virus met this test,241 but in dismissing this claim the court held that their injury from exposure to Covid was not “so markedly greater in degree than that faced by large numbers of the public” as to justify application of the public nuisance doctrine.242 The New York case against Amazon is nevertheless proceeding. The plaintiffs – both workers and their family members – also alleged a right to safe workplace under New York statutory law,243 which is a codification of the common law right to a safe workplace.244 The trial court had dismissed the entire action, invoking the primary jurisdiction doctrine (echoing the decision in the Missouri Smithfield case), but the Second Circuit Court of Appeals emphatically reversed,245 holding that, although the public nuisance doctrine requirements were not met, the issues in general were well within the expertise of the courts and did not require any special expertise that OSHA might offer: The issues before us—whether Amazon created a public nuisance and whether Amazon has breached its duty owed to Plaintiffs under NYLL § 200 [statutory right to safe workplace] — turn on questions of state tort law that are within the conventional experience of judges. Although it is certainly within OSHA's competence to evaluate and create workplace health and safety standards, OSHA's expertise would not be a material aid here; the issues before us are of a legal, not factual, nature and do not require the kind of highly factual inquiry that would typically be aided by OSHA's expertise. 246 The court, in issuing its decision, relied in part on OSHA’s failure to act to regulate the hazard in question, noting that “OSHA has not promulgated the kind of cross-industry COVID-19 workplace safety standards that might be applicable here.”247 In similar cases brought against McDonald’s and franchisees in Chicago and Oakland, the state court judges granted temporary restraining orders, refusing to dismiss the legal actions.248 Current workers were joined in these cases by workers’ family members who had been infected by the employees. As in the other cases discussed above, plaintiffs sought injunctions against the employers to force adoption of safety protocols. These cases were ultimately settled, with specific requirements for safety protocols and creation of health and safety committees that included participation of non-managerial employees.249 The mixed success of these cases certainly suggests that the theories advanced by the workers are at least arguably sound – and the differences in outcome may be explained by differences 240 See Sprewell, 2021 WL 4706703, at *2 (“California law limits the private right of action for public nuisance to those who suffer a special injury as a result of the nuisance. … When a public nuisance claim is based on risk of disease, the special injury requirement is not satisfied by a plaintiff who only alleges that his risk of contracting a disease, or the severity of his actual medical symptoms, is greater than that of the general public.”); Palmer, 51 F.4th at 512 (“The district court properly dismissed Plaintiffs’ public nuisance claim because Plaintiffs fail to allege special injury.”). 241 Palmer, 51 F.4th at 512 (“Plaintiffs contend that, unlike members of the public at large, who can protect themselves from the virus by avoiding public places, they lack the autonomy to avoid the reach of Amazon's conduct since they cannot avoid JFK8 or their homes.”). 242 Id. at 514. 243 N.Y. Lab. Law § 200(1) (2002) (“All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”). 244 Palmer, 51 F.4th at 507 (“As NYLL § 200 is a codification of the common law duty to provide workers with a safe work environment, e.g., Lombardi v. Stout, 80 N.Y.2d 290, 294, 590 N.Y.S.2d 55, 604 N.E.2d 117 (N.Y. 1992); Everitt v. Nozkowski, 285 A.D.2d 442, 443, 728 N.Y.S.2d 58 (2d Dep't 2001), a federal court here can look to New York's common law to inform its determination as to whether Amazon breached the duty of care it owed to Plaintiffs. And where common law principles are at play, we have determined that the issues should be addressed in a judicial forum.”). 245 Id. at 491. 246 Id. at 499. 247 Id. 248 Plaintiff’s Response to Defendants’ Status Report and Memorandum in Support of Preliminary Injunction, Hernanez v. McDonald’s, No. RG20064825, 2020 WL 6547545 (Cal. Super. Ct. 2020) (preliminary injunction granted); Massey et al v. Mcdonald's Corp., Bus. Franchise Guide (CCH) ¶ 16,679, 2020 WL 4939293. 249 Summary of Hernandez v. VES McDonald’s Settlement, https://aboutblaw.com/Y7C (last visited Feb. 22, 2023); Joint Stipulation and [Proposed] Order Dismissing the Litigation, Massey v. McDonald’s, No. 2020 CH 04247 (Jul. 27, 2021), https://aboutblaw.com/Y7B. 60 ILO Working Paper 92 Obviously, law on all of these issues varies among the states – and judges within states can reach different conclusions. Many of these cases remain in litigation. As in other areas, it is too early to tell the full story of this kind of Covid-related litigation. At least as of early 2023, however, COVID-19 has not caused substantial changes in the way states approach liability relating to occupationally-caused illnesses. 7. COVID-related safety and retaliation complaints As of November 31, 2022, OSHA had received 19,634 complaints regarding COVID-related working conditions from workers, and state plans had received an additional 64,618; the health care industry predominated in these complaints, followed by retail and restaurant industry. 285 Although specifics are not available from OSHA directly, a reporter for the Washington Post requested further information and reported that thousands of complaints were received as early as March and April 2020. Many of these came from health care workers, concerned about the lack of PPE, and from workers complaining of working in close proximity to others.286 The complaints early in the pandemic also reflected a breakdown in the availability of masks and respirators for healthcare workers. Complaints about retaliation for raising concerns about safety related to the pandemic soared. In a usual year, OSHA receives approximately 2000 retaliation complaints under the OSHAct. As of November 30, 2022, 6,924 retaliation complaints had been filed with federal OSHA relating specifically to COVID (with almost all having been filed in the earlier years of the pandemic), and another 2,611 had been filed with state plans.287 OSHA does not report sector-specific information regarding these complaints. Media reports suggested that, again, the majority have come from the healthcare sector and emergency services, but that it is likely many have also come from workers in meatpacking, warehouses, construction and manufacturing. COVID-related safety retaliation cases have also been brought to courts based on a variety of common law theories, particularly alleging that a termination of a worker violated public policy. Hundreds of cases involving discharges of workers are now reported, and the outcome of the case is entirely dependent on the interpretation of public policy under each state’s common law. 288 8. COVID-related individual claims of disability discrimination Workers can raise several claims under the Americans with Disabilities Act that relate to OSH and the pandemic, including requests for reasonable accommodation to work remotely, requests to return to work with accommodation for symptoms of long COVID, and requests to refuse vaccines based on disability issues. The Equal Employment Opportunity Commission had received 285 Covid-19 Response Summary, Dep’t of Lab., Occupational Safety & Health Admin. (Feb. 22, 2023), https://www.osha.gov/enforcement/ covid-19-data. 286 Peter Whoriskey, Jeff Stein & Nate Jones, Thousands of OSHA Complaints Filed Against Companies for Virus Workplace Safety Concerns, Records Show, Wash. Post (Apr. 16, 2020), https://www.washingtonpost.com/business/2020/04/16/osha-coronavirus-complaints/ . 287 COVID-19 Response Summary, Summary Data for Federal and State Programs - Whistleblower Data, Dep’t of Lab., Occupational Safety & Health Admin. (Feb. 22, 2023), https://www.whistleblowers.gov/covid-19-data . Of the federal complaints, 1408 were “screened and referred to state plans”; 3615 were “screened and administratively closed”; 1632 were “docketed for investigation”; and, as of April 17, 2022, 1289 had been “investigated and completed.” Id. Further information regarding the outcome of these claims is not available. Of the state claims, 1103 were “screened and administratively closed”; 1383 were docketed for investigation; 997 were docketed and completed. Id. 288 Compare Warner v. United Natural Foods, 513 F. Supp. 3d 477 (D. Pa. 2021) (holding that the employee who was terminated after he reported employer for alleged failure to follow COVID-19 safety protocols failed to identify clear pronouncement of public policy that would meet the standard under Pennsylvania law), with Cupi v. Carle Bromenn Med. Ctr., No. 1:21-cv-01286, 2022 WL 808209, at *2 (D. Ill. Mar. 16, 2022) (applying Illinois law and holding, “The operative question is therefore whether Plaintiff's termination for complying with Defendant's COVID-19 procedures frustrated the public policy favoring strong COVID-19 mitigation measures during the height of the pandemic, as mandated by OSHA. By terminating Plaintiff for being absent on October 2, Defendant implies Plaintiff should have come to work on that day. Requiring employees to work while presenting COVID-19 symptoms clearly frustrates and undermines that public policy. And even without that implication, Defendant terminated Plaintiff for adhering to its own COVID-19 mitigation procedures. That in and of itself offends public policy.”). 61 ILO Working Paper 92 over 6000 ADA complaints raising these and related issues by the end of 2023289 and issued extensive guidance on COVID and the ADA.290 The cases that have been filed vary widely and are largely unresolved at this point. Related issues are arising under state common law and several federal statutes, including under the Family and Medical Leave Act291 (which provides for 12 weeks of unpaid leave for serious health conditions), the Families First Coronavirus Response Act (FFCRA)292 and the Emergency Family and Medical Leave Expansion Act (which provided emergency leave protections during the pandemic). Many of these cases involve terminations, often relating to an employee’s absence from work due to illness or the need to quarantine. To date, many courts seem reluctant to extend disability or common law to protect workers in these situations.293 For claims under FFCRA, the workers’ claims had to come within the very specific contours of the statute; claims that did not meet these specific requirements are being dismissed, despite the basic legitimacy of the leave and its relationship to the pandemic.294 All of these cases raise a concern for essential workers who were caught between public health or medical orders to stay home and orders from their employers to return to work. Given the basic employment law in the U.S., in which non-union private sector workers are subject to discharge without cause under the application of the “employment-at-will” doctrine, the cases raise very troubling issues regarding job security during the pandemic. E. The social safety net and the pandemic Compared to the general paucity of social support for people generally, as described above, the financial support provided to workers at the beginning of the pandemic was relatively substantial. It came in a number of forms from the federal government, briefly described below. In 289 From April 2020 through December 2021, the U.S. Equal Employment Opportunity Commission had received about 6,225 Covidrelated charges of discrimination under federal civil rights laws. In addition, the commission received more than 2,700 vaccine-related charges, largely based on employers’ failure to accommodate a request to avoid vaccines based on disability. Erin Mulvaney, Thousands of Covid-Related EEOC Charges Cite Disability Bias, Bloomberg L. (March 10, 2022), https://www.bloomberglaw.com/ bloomberglawnews/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxN2YtNzRhNS1kZGZlLWFiZmYtNzZhZGY2ZGMwMDAxIiwic2lnIjoidX pzTjVMQXVuYVFudFFFQ2lvaGZZdVpWMjNRPSIsInRpbWUiOiIxNjQ2OTM0NTE3IiwidXVpZCI6Ikk3OXRMNzVEWW9QN0NCalhBYWNae UE9PUxTN2VPS0dad2VVK1lRbk9qbmNyU1E9PSIsInYiOiIxIn0=?bwid=0000017f-74a5-ddfe-abff-76adf6dc0001&cti=LSCH&emc=bdlnw_ cn%3A2&et=CHANNEL_NOTIFICATION&isAlert=false&item=read-text&qid=7259250®ion=digest&source=breaking-news&uc=13 20024186&udvType=Alert&usertype=External . 290 See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Emp. Op’ty Comm’n (Jul. 12, 2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws . 291 29 U.S.C. § 2601. 292 Families First Coronovirus Response Act of 2020, Pub. L. No. 116-127, 134 Stat. 178 (codified as amended in scattered sections, including 42 U.S.C.). 293 See, e.g., Payne v. Woods Services, 520 F. Supp. 3d 670, 678 (E.D. Pa. 2021) (granting the Defendant’s motion to dismiss on employee’s disability discrimination claim when the employee was terminated after refusing to return to work when under instructions to quarantine); Brown v. Roanoke Rehabilitation & Healthcare Center, 586 F. Supp. 3d 1171, 1177 (E.D. Ala. 2022) (denying the Defendant’s motion to dismiss on employee’s disability claim after the employee was terminated for failing to report to work while she was in the 13th day of her 14-day COVID-19 isolation and while she continued to suffer from COVID symptoms). 294 There are numerous cases on this point. In general, the cases reported to date resolve whether an employer’s Motion to Dismiss will be granted. For examples of cases in which these motions were granted, see, e.g., Nikki Ponti v. Shrewsbury Borough Sch. Dist. Bd. of Educ., No. 21-3415, 2021 WL 7904058 (D. N.J. Dec. 1, 2021) (holding that the worker who requested to work from home due to high risk and was terminated did not take leave for any of the reasons enumerated in the FMLA or EFMLEA); Bowden v. Brinly-Hardy Co., No. 3:20-CV-0438-CHB, 2020 WL 9607025 (W.D. Ky. Dec. 15, 2020) (plaintiff was home with COVID and, at the direction of physician, was waiting for a negative test before returning to work, and was discharged after having used up the two weeks of paid leave under FFCRA; while the FMLA provides protected leave for qualifying need “related to a public health emergency,” Section 2612(a)(1) (F) defines the narrow circumstance under which employees may qualify under this provision. The court wrote: “‘a qualifying need related to a public health emergency’ may sound like it could encompass a COVID-19 diagnosis, but it does not. Section 2620 defines a ‘qualifying need related to a public health emergency’ to simply mean ‘the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.’ § 2620(a)(2)(A). The requisite ‘public health emergency’ must be related to COVID-19. § 2620(a)(2)(B). A COVID-19 diagnosis or medical order to isolate or quarantine is simply not included”); Gomes v. Steere House, 504 F. Supp. 3d 15, 18 (D. R.I. 2020). For examples of cases in which the initial Motion to Dismiss was not granted, see, e.g., Johnson v. Gerresheimer Glass Inc., No. 21-cv-4079, 2022 WL 117768, at *4 (N.D. Ill. Jan. 12, 2022); Gracia v. L. Off. of Alexander E. Borell, 535 F. Supp. 3d 1268, 1275 (M.D. Fla. 2021). 62 ILO Working Paper 92 addition to these federal supports, state responses varied: some states provided substantially greater support for workers though expanded unemployment and paid leave benefits; others, including Arizona and Mississippi, as described above, sometimes declined federal supports despite the crisis. These materials do not provide state-based information regarding these issues, beyond the descriptions in the state case studies above. Three federal laws provided assistance to essential workers during the pandemic: the Families First Coronavirus Response Act (FFCRA)295 and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act),296 both enacted in March 2020, and the American Rescue Plan Act of 2021 (ARPA),297 enacted in March 2021. Most of the expanded benefits have, or will soon, expire. With the exception of a three year extension of some expanded health benefits,298 there is no indication that the protections in these laws will be re-enacted or extended. None of these laws specifically targeted essential workers or critical sectors. But their impact on low wage workers and their families cannot be underestimated. Low wage workers in essential industries who earn the minimum wage may have incomes well below the poverty line. Many of these workers have had inadequate health insurance. Many had no access to paid sick leave. The provisions described below therefore were of great importance to these workers. Health insurance Under ARPA, subsidies for individuals purchasing health insurance were raised; the level of financial assistance for people with lower incomes was increased; and the upper income cap for eligibility (known as the subsidy cliff) was eliminated. As a result, it has been estimated that roughly 3.7 million more Americans – more than a third of whom were uninsured – became newly eligible for financial assistance to buy coverage and millions more became eligible for increased financial assistance; more than four out of ten uninsured people became eligible for a free or nearly free health plan; and a majority of previously uninsured people became eligible for financial assistance for the purchase of health insurance.299 These changes substantially affected the eligibility of low wage essential workers to access affordable health care. These changes were not been made permanent, however, and they were set to expire at the end of 2022. As noted above, some of the subsidies have, however, been extended through 2025 as part of the Inflation Reduction Act, legislaton that was passed in 2022.300 Despite these improvements, there are still millions of people in the U.S. who are either uninsured or under-insured for health care, including many essential workers. 295 Families First Coronovirus Response Act of 2020, Pub. L. No. 116-127, 134 Stat. 178 (codified as amended in scattered sections, including 42 U.S.C.). 296 Coronavirus Aid, Relief, and Economic Security Act of 2020, Pub. L. No. 116-136 (codified as amended in scattered sections, including 20 U.S.C.), https://www.govinfo.gov/app/details/PLAW-116publ136. 297 American Rescue Plan Act of 2021, Pub. L. 117-2 (codified as amended in scattered sections, including 42 U.S.C.), https://www.govinfo. gov/app/details/PLAW-117publ2. 298 Health subsidy expansion was continued as part of the 2022 Inflation Reduction Act, Pub. L. No. 117-169, Subtitle C – Affordable Care Act Subsidies, Sec. 12001 (Aug. 16, 2022) (The act extends through 2025 certain adjustments and expansions of the premium tax credit, including to allow taxpayers with income above 400% of the federal poverty line to qualify for the credit.) 299 Matthew Rae et al., How the American Rescue Plan Act Affects Subsidies for Marketplace Shoppers and People Who Are Uninsured, Kaiser Fam. Found. (Mar. 25, 2021), https://www.kff.org/health-reform/issue-brief/how-the-american-rescue-plan-act-affects-subsidiesfor-marketplace-shoppers-and-people-who-are-uninsured/. 300 2022 Inflation Reduction Act § 12001 (extending through 2025 certain adjustments and expansions of the premium tax credit, including to allow taxpayers with income above 400% of the federal poverty line to qualify for the credit). 63 ILO Working Paper 92 Unemployment insurance The CARES Act substantially expanded the availability of unemployment insurance (UI) for workers unable to work due to the pandemic. Provisions included the following: Pandemic Unemployment Assistance (PUA) provided support for workers who were unable to work due to the pandemic but who would not have qualified under traditional UI eligibility rules. For example, eligible workers under the PUA/CARES Act included independent contractors, gig workers, farmers and individuals who did not have adequate work records to qualify under pre-existing rules. UI became available to people with COVID-related absences, including those who had been diagnosed, were living with or caring for someone who had been diagnosed, or were caring for a child who was unable to attend school. Participating states were required to relax the usual requirement that applicants be actively searching for work to qualify for these benefits in order to accommodate pandemic-related illness, quarantine, and movement restrictions. Under the Federal Pandemic Unemployment Compensation (FPUC), eligible people who collected unemployment insurance benefits, including regular unemployment compensation, received an extra $600 in federal benefits each week through July 31, 2020. Pandemic Emergency Unemployment Compensation (PEUC) extended the number of weeks an unemployed worker could collect benefits. After several extensions, PEUC extended unemployment insurance by up to 53 weeks. The PEUC program ended on Sept. 6, 2021. Under ARPA, the FPUC was extended but reduced to $300 from $600 per week for the period January 3, 2021 through September 5, 2021. Those making less than $150,000 a year and receiving unemployment benefits were also eligible for a $10,200 tax break under this legislation. All states but South Dakota initially applied to participate in the expanded UI benefit programs. Several states decided to terminate participation early. All pandemic-related federal unemployment benefits expired on September 6, 2021. It does not appear that they will be renewed. Paid sick leave FFCRA included two provisions, the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, which applied to public employers and private employers with fewer than 500 employees. These temporary provisions provided for: Two weeks of paid sick leave at full pay rate if the individual was unable to work because of quarantine or isolation requirements, or because of the need to care for someone else in quarantine, or the need to care for a child whose school was closed due to the pandemic. Up to ten weeks of paid leave at two-thirds the employee’s regular rate of pay when a worker was unable to work due to the need to care for a child whose school or childcare provider was closed due to the pandemic. The explanation for excluding large employers with 500 employees was apparently the assumption that these employers would provide paid leave to their employees without regulatory intervention. FFCRA also provided a refundable tax credit for the mandated paid sick leave and family leave for private-sector employers with under 500 employees. Researchers have now estimated that these payments prevented about one COVID-19 case per day for every 1300 workers covered.301 These provisions expired at the end of 2020. 301 Stefan Pichler et al., COVID-19 Emergency Sick Leave Has Helped Flatten The Curve in the United States, 39 Health Aff. 2197, 2197 (2020). 64 ILO Working Paper 92 Workers’ compensation As noted in the state case studies above, state-based workers’ compensation systems have varied in their response to the pandemic. To the extent data are available, it appears that COVIDrelated claims have been paid, at least for many health care workers, in most states. Direct payments to individuals and families Three rounds of direct payments to individuals were authorized. In 2020, the CARES Act provided the first “Economic Impact Payment” of $1,200 ($2,400 for a couple) plus $500 for each child for individuals earning less than $75,000 or couples earning $150,000. In December 2020 the COVID-related Tax Relief Act of 2020 authorized a second direct payment of $600 ($1,200 for a couple) plus $600 for each child. ARPA provided a third round of direct payments of $1,400 for eligible individuals or $2,800 for married couples, plus $1,400 for each qualifying dependent, including adult dependents. In addition, ARPA substantially expanded the Child Tax Credit, increasing the amount and providing a mechanism for monthly payment from July through December of 2021 for families earning up to $150,000. This meant that qualifying families received $250 per month for each child 6-17 years old and $300 per month for each child under 6. The Child Tax Credit, with its monthly payments to families, had a demonstrable – albeit brief – effect in reducing poverty.302 All of these direct payments provided substantial assistance to low wage essential workers. All of them have expired. Hazard pay Hazard pay was proposed in Congress for essential workers, but never enacted. No federal governmental program mandated increased pay based on hazardous work during the pandemic. A few state and local governments did enact hazard pay for targeted industries. For example, a Seattle city ordinance mandated that all grocery stores with over 500 workers provide their workers with hazard pay of $4 an hour.303 Private firms did sometimes voluntarily offered hazard pay for some portion of the pandemic. Health and safety activists generally prefer aggressive safety measures to increases in pay for workers exposed to risk. 302 See, e.g., Zachary Parolin et al., Sixth Child Tax Credit Payment Kept 3.7 Million Children Out of Poverty in December, 6 Poverty & Soc. Pol’y Brief, Jan. 18, 2022, at 1, 2. 303 Councilmember Mosqueda, Hazard Pay for Grocery Employees, CB 119990, https://seattle.legistar.com/View.ashx?M=F&ID=9085980& GUID=82958EEA-7E5D-450E-BFF8-4B24D9B61339 (last visited Mar. 7, 2023). The ordinance withstood a challenge brought by grocery stores covered by the ordinance [Nw. Grocery Ass’n v. City of Seattle, 526 F. Supp. 3d 884, 897 (W.D. Wash. 2021)] but was repealed effective Sept. 2, 2022. Seattle Office of Labor Standards Announces the Suspension of Hazard Pay Under the Grocery Employee Hazard Pay Ordinance, City of Seattle, Wash. (Sept. 2, 2022 8:34 AM), https://content.govdelivery.com/accounts/WASEATTLE/bulletins/32af26c. 65 ILO Working Paper 92 X3 OSH shortcomings and challenges faced by U.S. essential workers, highlighted by the pandemic experience As we entered the fourth year of the pandemic, OSHA has continued to promise to issue a permanent standard governing exposure to Covid-19 in the healthcare industry. For now, however, all essential workers remain at risk without adequate OSH protections in most places in the country. On February 10, 2023, President Biden announced that the federal emergency would be terminated on May 11, 2023.304 Below is a brief synopsis of key OSH shortcomings and challenges that affect essential frontline workers and which have been highlighted by the pandemic: 1. Federal OSH protection for essential at-risk workers is not adequate. Even when the federal administration is committed to worker protection, OSHA is prevented from moving quickly due to cumbersome standard-setting procedures and the complexity of enforcing the general duty clause. This is further exacerbated by the reluctance of the judiciary to uphold standards that are promulgated, as evidenced most recently by the Supreme Court’s rejection of the OSHA vaccine-or-test mandate. 2. The lack of any requirement for the development of workplace-specific Occupational Safety and Health Management Systems outside of the mining industries means that firms are under no obligation to continuously monitor hazards in workplaces. Obligations under the OSHAct general duty clause are not an adequate substitute. When a new hazard, such as COVID-19, is recognized, there is therefore no clear obligation of employers to act immediately to reduce levels of risk. 3. The OSH laws in the U.S. focus on the employer-employee relationship. This means that essential workers on worksites may lack both OSH and anti-retaliation protections. Without a general duty of care that requires firms to protect all workers on a worksite, U.S. OSH laws do not adequately protect all essential workers. 4. The inadequacy of existing federal regulation has meant that protection for essential workers during the pandemic has devolved to states and localities. The pandemic has revealed the variability of states’ willingness and capability to address serious OSH risks. It also highlights the troubling effects of changeable state politics on the ability to protect essential workers. Moreover, state-based public health is simply not adequate to address an infectious disease pandemic: borders of states and localities are completely porous, meaning that public health measures taken only at the local level are inevitably inadequate during an infectious disease pandemic. 5. The overall weakness of local public health agencies has meant that they are not in a position to develop and sustain OSH expertise that would enable them to move quickly and effectively to protect essential workers or intervene in workplaces. The underfunding of local public health has been an issue raised for years by the broader public health community in the U.S.; the particular effects on essential workers during the pandemic has illustrated the weaknesses of the current system. 304 Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (Feb. 20, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/02/10/notice-on-the-continuation-of-the-national-emergencyconcerning-the-coronavirus-disease-2019-covid-19-pandemic-3/. 66 ILO Working Paper 92 6. There is a complete lack of any OSH protection for state and local public sector workers in Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Nebraska, Ohio, Oklahoma, Rhode Island, Pennsylvania, South Dakota and Texas, and limited protection in some other states. Essential public sector workers in these states work in industries including healthcare, transportation, security and corrections. Under the current regulatory regime, these workers can only be given OSH protection through state law. But, in general, these workers are in states with inadequate protection for workers generally. It is unlikely that universal protection will be forthcoming unless there is a federal mandate that requires state action. 7. The lack of adequate job protections for essential workers, starting with the basic employment laws and underscored by the inadequate anti-retaliation provisions of OSHA, suggests that essential workers are – and perceive themselves to be – at risk if they raise health and safety concerns. This lack of job protection, combined with the low level of unionization, means that there are few clear avenues for workers to influence OSH decisionmaking at the workplace or firm level. Despite the statutory rights to participate in workplace inspections and in standard-setting, these rights are difficult for non-union workers to exercise. Worker voice is simply not strong enough to address serious OSH issues such as those raised by the pandemic. 8. Little attention was paid in the U.S. to the specific needs of particular groups of essential workers, and the results have been catastrophic in some communities. This includes the failure to address the inevitable disparate impact of the pandemic on low income and poor communities which are largely comprised of immigrants and people of color. The pandemic brought out the extraordinary need – and failures – to address broad issues of inequality in the U.S. Lack of adequate housing, public transportation and childcare, as well as income disparities, were all highlighted during the pandemic. Essential workers were caught at the center of broad societal failures. 9. The particular inadequacies of the existing structure of social protections, particularly the weakness of the health care system (both access to insurance and access to care) and lack of federal paid sick leave, were also highlighted by the pandemic. The temporary interventions in these areas are expiring. There is no indication that federal legislation will be passed and implemented that will improve the situation. Again, social protections are left to the states. The willingness among states to address these issues varies tremendously, and essential workers in poor conservative states are paying the price. 10. The lack of coordination during the pandemic between public health agencies (such as the CDC) and OSH agencies at both the state and federal level has resulted in a lack of adequate protection for essential workers. For example, public health agencies at the federal level and in many states failed to maintain adequate data regarding the association of disease spread and workplace exposures. Without this occupationally based data, it is more difficult for OSH regulatory agencies to develop regulatory and enforcement strategies. 11. There has been inconsistent communication of OSH and public health strategies to the general public and to essential workers. The controversies regarding vaccines and vaccine mandates has further blurred the public health messaging. There is a need for adequate, effective, consistent and continuous communication of public health strategies based on changing scientific information to both workers and employers, as well as the general population. 67 ILO Working Paper 92 XConclusion The failure of the U.S. to ratify ILO OSH conventions is emblematic of the weak state of OSH regulation and enforcement in the U.S. Specific recommendations can flow from the shortcomings and challenges enumerated above. But the current political situation in the U.S. makes it doubtful that Congress will pass federal legislation that would eliminate some of the weaknesses of the existing OSHAct and strengthen worker voice. This means that disparities among states will continue for the time being, and worker advocates have turned to state legislatures for more adequate protection for essential workers. This approach raises at least four inherent and troubling issues: the disparities among states for protecting essential workers will persist; states are not individually in a good position to address issues of supply chain adequacy, such as for PPE, that is critical for these workers; states are limited by federalism and preemptive effects of some federal laws to do all that is necessary to protect essential workers; and, from the vantage point of public health generally, states have no ability to contain the spread of an infectious disease, given the porosity of their borders. Effective national leadership in both the key public health agencies and the OSH agencies is therefore essential. Current political and agency OSH leadership appears to be committed to expanding protections for essential workers, but the delay in issuing a permanent standard to protect healthcare workers from airborne disease illustrates the cumbersome and bureaucratic nature of the regulatory process. The ability to overcome these obstacles is critical to create a state of preparedness for the next pandemic that will affect essential workers. 68 ILO Working Paper 92 Acknowledgements This Report was prepared with support from the ILO and revised in 2023 with support from the McElhattan Foundation (U.S.) and Northeastern University School of Law (Boston, MA, U.S.). Gregory Wagner and David Michaels reviewed drafts, and Sarah Basile provided invaluable research support to update the material through March 31, 2023. Special thanks to the team involved in development of the overall approach to the ILO national reports (Sean Cooney, Iván Williams Jiménez, and Olivia de Quintana Figueiredo Pasqualeto) and, at the ILO, Janine Berg and Tzvetomira Radoslavova. The joint work of the ILO team resulted in the publication of ILO Working Paper No. 90, “OSH and the COVID-19 pandemic: A legal analysis,” ILO Working Paper No. 90, https://www.ilo.org/wcmsp5/groups/public/---dgreports/---inst/documents/publication/ wcms_871987.pdf. Research Department (RESEARCH) International Labour Organization Route des Morillons 4 1211 Geneva 22 Switzerland T +41 22 799 6530 resear[email protected] www.ilo.org/research XAdvancing social justice, promoting decent work The International Labour Organization is the United Nations agency for the world of work. We bring together governments, employers and workers to improve the working lives of all people, driving a human-centred approach to the future of work through employment creation, rights at work, social protection and social dialogue. I S B N 9789220391402 9HSTCMA*djbeac+ 9 789220 391402 Contact details