Along the way we have periodically mentioned the intervention of states, and state law, into the field of  occupational safety and health regulation. But until now, we have focused almost exclusively on federal OSHA.

The readings in this section focus on what OSHA did (and did not) do, and the powers of the states to act against a workplace hazard. The federal: state relationships [see above Section 3.9.4] were brought front and center in 2020 by OSHA’s failure to act to protect workers from the coronavirus. In 2021 OSHA did issue two Emergency Temporary Standards, and CMS (Health & Human Services) also issued an interim standard. In this section, the focus is on regulatory actions taken by these federal agencies, the Supreme Court’s response, and what some of the states did. Later, in our discussion of workers’ rights, we will look at workers’ recourse when the agencies did not act or did not act effectively.

The question of what constitutes an “occupational disease” is at the root of the decision in NFIB v. DOL (coming soon in these materials) – and it is certainly a complex issue in the world of workers’ compensation, which we will discuss later in the course. But from OSHA’s point of view, when workers are at elevated risk as a result of exposure to a hazard inside a workplace, then it is an occupational hazard. If it meets the requirements that the risk is significant, that the hazard can be identified, that workers are exposed to it, and that there are technologically and economically feasible ways to reduce the risk, then it is a hazard that OSHA can regulate.

So…Are these diseases reported as illnesses to the Bureau of Labor Statistics by employers?

See -  Workers tried to blow the whistle on covid hazards

As soon as the coronavirus pandemic began, workers across the country flooded federal and state offices with complaints that their employers weren’t protecting them from the health threat. The concerns have continued to pour into workplace safety agencies for seven months, totaling nearly 40,000 as of Thursday.

It turns out the allegations have been a flashing warning sign all along, according to a new working paper published by the Harvard Center for Population and Development Studies. The analysis of data from the Occupational Safety and Health Administration shows that a rise in workers’ safety complaints has preceded a rise in deaths throughout the pandemic.

Experts looked at complaints filed with OSHA and corresponding state agencies from February to late August, and set the data against fatalities likely caused by the novel coronavirus. What they found was that the curve of the complaints roughly matches the curve of pandemic deaths, with the latter trailing the former by 17 days.

Nancy Krieger, a professor of social epidemiology at Harvard University, said the lag in the time when the deaths occur is a key finding. Workers likely became aware of infections happening around them, felt they weren’t protected on the job and tried to blow the whistle. Then, within a couple of weeks, the number of deaths was increasing. “It’s not that there were deaths and then people started complaining,” Krieger said.

“There were [safety] complaints ― and then the deaths happened.” 

Those trends hold true for the U.S. at large, as well as the four individual regions the researchers looked at, all of which had spikes in deaths at different times. The researchers cautioned that it’s impossible to say how much of a rise in worker complaints could be attributed to growing awareness of the virus, and how much to actual hazards on the job.

But in either case, the increases in worker complaints should have served as an alarm. Instead, the paper concludes, they ended up a “missed opportunity to intervene” by the government.

“People were aware of [the virus]. They were complaining because they didn’t feel protected,” said Bill Hanage, an associate professor of epidemiology at Harvard. “Then the cases that were making them concerned led to the fatalities.” 

OSHA has been widely panned for its coronavirus response. 

The agency has opened only 206 inspections out of more than 9,300 coronavirus-related complaints from workers. OSHA suffers from chronic understaffing, but workplace safety experts say that under the Trump administration it has failed to use basic tools at its disposal, like setting new emergency standards or issuing hefty fines for violations. (Twenty-one states and Puerto Rico have their own workplace safety agencies that handle complaints, and their aggressiveness varies.)

As of last week, OSHA had issued $484,000 in fines against employers for coronavirusrelated hazards. All told, just 37 employers have received citations. Even worksites that were home to major outbreaks and lost multiple workers to COVID-19, like Smithfield and JBS meatpacking plants in South Dakota and Colorado, respectively, were hit with fines only in the low five-digits.

OSHA has defended its performance during the crisis, recently telling HuffPost in a statement that it was working around the clock to protect workers: “OSHA inspectors will not close a case if they have identified any potential citations. ... OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s
workplaces safe.”

But Peg Seminario, a workplace safety expert who helped researchers unpack the OSHA data, said the employee complaints should have prompted more action and could have saved lives with an aggressive response. Workers have grumbled about how difficult it is to get an on-the-ground inspection from OSHA, with the agency often just dealing with employers by phone and fax. “Workers obviously knew something was going on in their workplaces, raising these concerns,” said Seminario, who led the workplace safety program at the AFL-CIO labor federation for nearly 30 years before retiring in 2019. “Yet we had almost no response.” 

The spike in cases was not limited to healthcare workers and first responders. Other industries severely affected included the meatpacking industry, which had an early spike in OSHA complaints and deaths related to the pandemic. Read:  U.S. Meat Plants Are Deadly as Ever, With No Incentive to Change ‘It’s enormously frightening’” The Guardian - meatpacking industry & covid - Nov. 2021.

For a full review of the approach in the U.S. to regulating the coronavirus, read:

(1)  Emily A. Spieler, Occupational Safety and Health, Essential Workers, and the Covid-19 Pandemic in the U.S. - Report to the International Labour Organization, Northeastern University School of Law Research Paper No. 462, pp 22-77, available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4426624. This Report was prepared for the International Labour Organization and is also available on the ILO webiste: https://www.ilo.org/global/publications/working-papers/WCMS_871987/lang--en/index.htm  

[Note that the introductory sections of this Report also provide an overview of OSHA that may be helpful as a supplement to descriptions in these materials]

and 

(2) Emily A. Spieler, Protecting Essential Frontline Workers in the U.S. During the Coronavirus Pandemic - OSHA, State Regulation and Implications of Federalism, 56 Suffolk U. L. Rev. 369 (2023)

In doing these readings, be prepared to consider the following questions:

• How did federal OSHA approach the particular challenges posed by the pandemic in 2020? How did this change in 2021? 
• What enforcement activities did OSHA pursue, and under what authority? How effective were these efforts?
• The variations in state approaches to the pandemic revealed both the strength of some states, and the troubling weakness of state plans in other states. Be prepared to discuss this variation as you reflect on the way in which preemption and federalism played out during this crisis.
• Note, too, the attempts to use private actions to address the failures of the regulatory state. Were any of the theories advanced in these actions successful? If so, what were the variables that may have led to success? What theories should be considered when the next crisis comes upon us?

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OSHA's attempts to issue emergency regulations to protect workers - 

In June 2021, OSHA promulgated an Emergency Temporary Standard, Occupational Exposure
to COVID–19, that was limited to exposures in healthcare facilities, and did not address significant risks in other industries including meatpacking. Despite much discussion of a possible broader and more comprehensive regulation of aerosol-spread infectious diseases within workplaces, OSHA has taken no action after the expiration of this ETS six months after it was promulgated. 

OSHA's second covid-related ETS was directed at vaccines. Read now:

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) 

Questions:

1. How does the court view the scope of OSHA's mandate in general?
2. What avenues for OSHA regulation relating to vaccines did this case leave open (if any)? What are the implications of this for future regulations of infectious diseases that are linked to workplace exposures?
3. What are the broader implications of the reasoning in this case for future regulatory efforts by OSHA, beyond the specific question of the vaccine mandate? 

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What about the possibility of future pandemics?

There are many sources on the issues that swirled around workers during the pandemic. These sources consistently raise concerns about the failure of the regulatory state and many make suggestions for the future. See, for example, Michaels et al, US workers during the covid-19 pandemic: uneven risks, inadequate protections, and predictable consequences, British Medical Journal, 2024 British Medical Journal 384 (2024).

Note that the inadequacy of health and safety protection specifically merges into other policy issues, including general public measures as well as paid sick leave, health care, and so on. As the authors of the BMJ article suggest:

Action plan for the future

Acknowledging the lack of effectiveness of their actions against covid-19, public health agencies and occupational health regulators, working with employers’ and workers’ representatives, need to develop comprehensive plans for governmental action to address the workplace health and safety issues created by  future pandemics. To increase worker protections, OSHA should issue two new standards, one focused on preventing workplace exposure to airborne pathogens and a second on pandemic preparedness, requiring each employer to develop an establishment specific plan to protect its workers, and to implement the plan when it becomes necessary. Both the nation’s and employers’ pandemic preparedness plans should include provisions to ensure the availability and distribution of essential personal protective equipment, as well as vaccines and other health interventions, without regard to the economic capacity of individuals or organizations. These plans need to be updated regularly to reflect the latest scientific information.

To decrease transmission of airborne infections, priority must be given to developing federal and state policies to enable workers to stay at home if potentially infectious. Although some employers currently provide limited paid medical leave, others give little or no financial support to stay at home when sick, and it will require legislation, and perhaps financial subsidies, to establish universal paid leave. Given the importance of keeping infectious workers out of the workplace, OSHA’s future airborne infection prevention standard should require employers covered by that standard to provide paid medical leave when appropriate.

Maintaining clean, virus-free air is the most important way to make workplaces safe and has important benefits beyond preventing spread of airborne infections.34 In the long run, this can be achieved by updating local building codes to require improved performance of heating, ventilation, and air  conditioning (HVAC) systems; more immediately, requiring building owners and operators to provide building tenants, workers, and guests with data showing the effectiveness of the building’s HVAC systems will help encourage improved functioning.

Successful safety and health programs engage workers in identifying and mitigating health and safety threats at work. Consistent with required practices in the EU and International Labour Organization conventions, OSHA should issue a broad safety and health management standard that requires workers’ participation in workplace risk assessment and abatement activities and improves protections against retaliation for those identifying threats to workers’ safety or health.

The gap between the mainstream public health and worker safety and health protection systems needs to be filled. Expanding the funding, staffing, and expertise of workplace safety and health agencies as well as state and local health departments would help, but more effort must be made to increase  communication and collaboration between these two systems, especially at local level. ... 

Finally, for workers to be better protected from airborne infections as well as other work hazards, Congress must enable OSHA to develop a faster, more nimble standard setting process, provide the agency with greater resources for inspections, and expand its ability to issue civil and criminal penalties that have a greater deterrent effect.

None of these interventions deal with the underlying structural and institutionalized racism and inequality of the US labor market. During the early phases of the covid-19 pandemic we saw that wage inequality, housing segregation, and lack of employer provided benefits meant that vulnerable workers were at increased risk of disease and death. We also saw that government interventions through cash assistance, tax credits, increased healthcare insurance coverage, and other steps improved the lives of  workers and their families, made workplaces safer, and increased social equality. The lapse of these policies has led to increased inequality and poverty. These policies and programs would be beneficial even in the absence of a pandemic, and we should not wait for the next pandemic to introduce them.

With concerns continuing to rise regarding the possibility of a future avian flu epidemic, it does not appear that any preparation has been done in the U.S. to address workplace (or other) concerns. As of 2025, the federal Administration is hostile both to advancing worker protections and to vaccines and vaccine development.