Workers who encounter something that is an immediate threat to health and safety have few good choices for action
Over the past few weeks, under political and economic pressure, some states have begun to scale back COVID-19 restrictions on businesses, allowing nonessential businesses to reopen, so long as they follow certain recommended guidelines. Workers in these states who were furloughed or laid off are being called back to work—but not all workers feel their workplaces are safe enough from the deadly virus, and so some are staying home. In response, some state governments have encouraged employers to report workers who refuse to return to the workplace, so that the state could save money by denying these workers unemployment compensation. And the U.S. Department of Labor has actually issued an advisory memo encouraging all states to do so.
This struggle over whether it’s safe to return to work has raised some interesting questions. In this once-in-a-lifetime pandemic, as the United States has logged more than 1.3 million cases of COVID-19, and over 85,000 deaths (at the time of publication), a debate has ensued over who should be the arbiter of whether a workplace is safe enough for workers to return. And in this process, who represents workers’ interests in guaranteeing their health and safety, particularly for nonunion workers?
As these millions of American workers return to their workplaces over the coming weeks and months, one federal agency is going to experience perhaps its greatest stress test, and few believe it is up to the task. The Occupational Safety and Health Administration (OSHA) was created in 1970 “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” However lofty Congress’s goals were at the time, OSHA has never quite lived up to its promise, because although its reach has always been broad—covering the vast majority of American workers—enforcement and remedies have always been weak. Congress should therefore reform the Occupational Safety and Health Act (OSH Act) to workers more say over workplace safety.
The Problem with OSHA
Though OSHA is responsible for the workplace health and safety of over 130 million workers, it is self-described as a “small agency,” with slightly more than $500 million in annual funding for all its operations nationwide. Since 1975, according to the National Employment Law Project (NELP), the agency has never had more than 1,500 total inspectors, and it is currently at its lowest level ever, with only 862 inspectors. That translates roughly to one federal health and safety inspector per 150,000 workers. Or, as NELP calculated in its report, “at this staffing level, it would take the agency a whopping 165 years to inspect each workplace under its jurisdiction just once.” However, even these rough calculations don’t capture the reality for many workers, because OSHA concentrates its inspections mainly in industries such as manufacturing and construction. In 2018, OSHA conducted 32,023 inspections, and most of the citations are in select industries. And even these numbers overcount the inspections that OSHA actually does, because it counts every employer’s workplace inspected as a separate inspection; that is, if OSHA inspects one construction site that has six contracting companies onsite, that single inspection is counted as six inspections. OSHA inspects so few sites because it must use its limited resources instead to respond to imminent dangers, fatality investigations, and investigations of formal complaints.
In this landscape, therefore, workers who encounter something that is an immediate threat to health and safety have few good choices for action. The worker can refuse to do the dangerous work according to 29 CFR 1977.12(b)(2), and theoretically OSHA would protect that worker in such a work refusal. However, the right is overly circumscribed. The OSH Act makes clear that a reasonable person must agree that there was a real danger of death or serious injury, and if a court were to find that the work refusal was unreasonable, then that employee can be discharged. And even if the refusal to work was deemed reasonable, the employer does not need to pay the worker for the time they did not work as a result of the refusal. As one aide on the House Committee on Education and Labor explained to the author, the law is so weak that they would not recommend refusing to do dangerous work unless the choice was between the worker’s life or job.
If a worker feels her safety was in jeopardy, she can file a formal complaint—if she is a current employee, alleges an imminent danger or violation of the OSH Act that places workers in physical or health harm, makes the complaint in writing, and signs it. OSHA will then decide whether an inspection is warranted, and if it decides not to conduct an inspection, the worker can formally appeal the decision. Alternately, if the worker fears retaliation from her employer, she can call OSHA or file an anonymous complaint—but if she does not submit a formal signed complaint, then it is merely treated as an inquiry. OSHA does not conduct inspections based on informal complaints or inquiries, and instead simply makes the employer aware of the complaint and requests a response.
If OSHA does conduct an inspection, then a “representative of employees” is entitled to walk around on the inspection. If the workers are represented by a union, then a union representative serves as the employee representative before OSHA. In 2013, OSHA issued an interpretation allowing a union or community group member to serve as an employee representative in a nonunion workplace, however that interpretation was rescinded in 2017. And, if no union represents the workers—which is the case in the vast majority of American workplaces—then there is rarely an employee representative, and workers have little participation in an OSHA inspection of their health and safety.
If OSHA does conduct an inspection and issues a citation and penalty, those penalties are often far too small to have a meaningful impact. According to an AFL–CIO report, in 2015, the average penalty for a serious violation was $2,148, and the median penalty for the death of a worker due to an unsafe workplace was $7,000. Often companies fight even these modest fines, delaying payment for years, such as when the multi-billion-dollar company Walmart spent seven years fighting a $7,000 fine for a worker’s death.
If a worker does file a formal complaint, there is a good chance that, despite the anti-retaliation provisions in the OSH Act, the worker will face retaliation. In this case, if an employee faces retaliation, they have no private right of action, and must instead rely on OSHA to prosecute their whistleblower complaint. Furthermore, there is an exceptionally short thirty-day period in which the employee to file, which has led to a significant number of whistleblower complaints never even getting docketed. In 2019, there were 2,084 OSHA whistleblower complaints, and only 14 were resolved on the merits. Of that first number, 545 of the cases settled, but a review by Northeastern University School of Law Professor Emily Spieler of settlements between 2005 and 2012 found that the average settlement was for less than $7,000. Furthermore, since many of these settlements include no admission that the OSH Act or OSHA regulations were violated, they do nothing to protect other employees.
The OSHA Reform That Workers Need
There is likely no reasonable path forward for OSHA to add enough new compliance officers to adequately inspect every workplace under its jurisdiction, and certainly not in time to deal with the current pandemic. Doing so, would require making OSHA one of the largest federal agencies, and significantly changing almost every aspect of the agency. Rather, there should be a renewed focus on worker participation in their own health and safety. Such a provision was included in the OSH Act, but it was written at a time when between 25 percent to 30 percent of private sector workers were represented by unions;1 currently, only 6.2 percent of private sector workers belong to a union. When OSHA was born, unions did a great deal of the work in ensuring a safe workplace; in their absence, a vacuum has been created.
This policy reform idea is neither novel, nor radical. It was first introduced in 1992 in a law review article by labor law scholar, Clyde Summers, and it deserves renewed attention. In Professor Summers’ article, “Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals,” he proposed a real enhancement of the “representative of employees” provision of the OSH Act in light of the fact that the provision is largely meaningless in a nonunion workplace. In order to give real effect to the law, each workplace should have workers elect nonexclusive health and safety representatives or committees. These health and safety committees would have not just the limited role included in the OSH Act of being able to trigger an inspection and walking around with inspectors, but rather as “the workplace implementors of the statutory provisions and policies, representing the interests of employees, individually, and as a group, in having a safe and healthy workplace.”
In practice, what this would mean is that these employee representatives or safety committees would have the right to regularly inspect workplace activities, conditions, protocols, accident and disease reports, and all other aspects of the workplace that touch upon health and safety. These representatives could consist of workers or union representatives, health and safety advocates, retired workers, members of community groups, or whomever the workers felt would do the best job in ensuring a safe work environment. If the safety committee were to find anything that was problematic, it would have both the responsibility and the right to discuss the issues with management. And if management either refused to engage or respond in a satisfactory manner, the safety committee would be able to demand an OSHA inspection to determine if the issue was in violation of employees’ health and safety rights. The workplace safety committee would then be a party in the case, just like the employer, having the right to present evidence, file arguments, and seek judicial review. Furthermore, if a worker served on a safety committee, it would need to be acknowledged that such worker would effectively have a target on her back, in terms of potential retaliation by the employer. Therefore, employers should be required to receive preclearance before taking any adverse employment action against such an employee, in order to ensure that it is not in retaliation for participation in a statutory safety committee.
This approach would have numerous benefits. It would be much more efficient than the current federal health and safety model. Workers know their specific health and safety needs and problems better than anyone, and have the greatest stake in the health and safety of the workplace. Furthermore, the protocols and procedures of a safe workplace should always be a collaborative effort, in which workers have a voice and power in the process. Furthermore, the OSHA model, as currently conceived, puts workers in an untenable position of having the theoretical right to a safe workplace, but with such a weak enforcement and remedial scheme as to make the right ephemeral in all but the most extreme cases.
Additionally, this reform approach would restore some of the voice that workers have lost in the workplace as a result of the extreme decline in union density in the United States. Labor scholar Nelson Lichtenstein, in proposing that states pass laws allowing for such safety committees, has aptly stated that “Many of these councils can be prefigurative institutions, proto-unions that can give hundreds of thousands of workers now laboring in authoritarian workplaces their first taste of voice and solidarity.” Though Professor Lichtenstein’s argument for safety committees is compelling, the state-based approach would present significant federal preemption problems that would prohibit states from passing such rules without approval from OSHA. Such approval would either likely not be granted or even revoked under certain presidential administrations, making it a problematic permanent solution. Furthermore, even if OSHA did grant states a variance to allow statutory safety committees, such state laws would further have to overcome federal labor law preemption, which is even broader than federal OSHA preemption. However, these issues would not exist if the OSH Act were reformed to require such safety committees.
The OSH Act has for too long minimized worker participation in their own health and safety. Workers had to hope that their employer was ensuring a safe working environment, and only use OSHA as a last resort. However, as millions of American return to work and face the possibility of serious illness or death due to an airborne virus, it is time for the OSH Act to be reformed to put workers in control of their health and safety.