Biden says OSHA isn’t doing enough to protect workers’ from COVID-19

During an April 15 virtual town hall meeting with front-line workers, former Vice President Joe Biden, the Democrats' presumptive nominee for the White House, was asked by a meat processing worker what he would do to protect workers like her from COVID-19.

"We lost a co-worker at my plant because there is no regulation to protect meat chain employees," said Safaa Elzakzoky, who is also a member of the United Food and Commercial Workers International Union. "We can't work safely and get people the meat that they need to eat. So what would you do to protect a worker like my friend who just died?"

In his response, Biden called attention to steps taken by the Obama administration during the H1N1 outbreak and criticized the Trump administration. He focused on "failures" by the Department of Labor and its Occupational Safety and Health Administration to use regulatory powers to protect workers, including OSHA's lack of action in enforcing specific worker safety guidelines related to COVID-19.

OSHA issued an advisory guidance in early March on how employers can protect workers from COVID-19, which included encouraging businesses to develop infectious disease plans, to allow frequent hand-washing, to urge workers to stay home when they feel sick and to provide face masks to employees.

Biden asserted that the agency's actions fall far short.

"Until this week, they weren't even enforcing these guidelines. Still today, OSHA is not specifying which rules employees must follow or how to keep their workers safe and healthy," said Biden.

With President Donald Trump's coronavirus response emerging as a political flashpoint in the presidential campaign, we decided to dig into the administration's role in ensuring worker safety. And, as headlines increasingly detail how those on the front lines — health care workers as well as those in grocery stores and meatpacking plants and across the food supply chain — have contracted and died of COVID-19, we thought it was important to check the veracity of Biden's claim.

We contacted Biden's campaign to find out the basis for his response. Staffers sent us an April 9 blog post from the National Employment Law Project, an advocacy group for workers, that outlines how the Trump administration's OSHA has failed to stipulate and enforce adequate employee protections during the pandemic. They also sent us OSHA's April 13 enforcement directive.

What could OSHA do?

OSHA is tasked with ensuring that workplaces are safe and healthy. The agency sets standards and has inspectors determine if workplaces are compliant. If they are not, OSHA issues citations and requires employers to address the problem within a certain timeframe. Failure to do so results in fines or other sanctions.

These standards tend to be broad statements that can take a decade to develop and implement. For instance, two Obama-era OSHA officials — David Michaels, the Labor Department's assistant secretary for OSHA from 2009 to 2017, and Debbie Berkowitz, a senior OSHA official from 2009 to 2015 — told us they had worked on developing an infectious disease standard for years, but that effort was halted in 2017 by the Trump administration.

However, OSHA also can issue an "emergency temporary standard" during a public health emergency, such as the current coronavirus pandemic.

Major unions, including the AFL-CIO and National Nurses United, have petitioned OSHA for an emergency temporary standard that would codify that a variety of types of workers are at risk of exposure to COVID-19 and issue detailed safety requirements for specific industries. So far, though, OSHA has not taken this emergency action.

Also, the March advisory guidance is not enforceable, said Michaels and Berkowitz. The guideline includes language stating that it is "not a standard or regulation and creates no new legal obligations." And though this document sketched out certain recommendations that would reduce workers' risk of exposure to COVID-19, when OSHA put out its April 13 enforcement directive, it didn't mandate that any of those recommendations be followed by workplaces or enforced by OSHA inspectors.

Michaels and Berkowitz pointed out that OSHA's COVID-19 directive is geared toward health care facilities, indicating that workplaces like food processing plants and grocery stores are untouched by the directive.

But Edwin Foulke, who ran OSHA during part of President George W. Bush's administration, had a different take.

Since the agency has a limited number of inspectors, the focus on health care facilities is logical, he said.

"Unfortunately, there is a death component to this virus, and obviously health care is the area where workers are most likely to be exposed," said Foulke, now a partner at the Fisher Phillips law firm in Atlanta and Arlington, Virginia.

"They put out the general publication on coronavirus, and now they're doing all these specific industry guidelines on how to deal with health issues. I'm not sure what more, looking at a real world scenario, they could do. What would it entail? And how is it going to help?" he said.

OSHA did not respond to a request for comment.

What has OSHA done in the past?

As part of answering the meat-processing plant worker's question, Biden pointed to his experience during the Obama administration with the H1N1 pandemic in comparison to the current coronavirus response. To be clear, OSHA did not issue an emergency standard then, either. But the agency did offer detailed guidance — almost twice as long as the COVID-19 enforcement document — on how to protect workers from H1N1.

And, though the H1N1-specific issues raised in the directive also were not enforceable, the document included specific instructions for inspectors on how to use existing agency standards to identify H1N1-related safety hazards in workplaces.

For example, the instructions included seven bullet points outlining situations specific to H1N1 in which a citation could be issued under the agency's general respiratory protection standard. In contrast, the COVID-19 enforcement document does not give the same level of guidance.

The ruling

Biden said that OSHA was not enforcing coronavirus guidelines until the week of April 13, and since then, the agency has not told employers what rules they must implement to keep workplaces safe.

It's true that OSHA did not release any COVID-19 enforcement instructions for its inspectors until April 13. However, even when this directive was issued, it told inspectors to focus on its existing general safety standards, not recommendations geared toward the current outbreak. In other words, the coronavirus guidelines are not currently being enforced by OSHA.

And while the agency's April 13 enforcement directive instructs inspectors to focus on general safety standards, it does not guide them on how specific recommendations for COVID-19 — for instance, requiring masks and encouraging hand-washing — fit into such efforts.

We rate Biden's claim True.