[ Workers who encounter something that is an immediate threat to
health and safety have few good choices for action.]
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WORKERS NEED OSHA REPRESENTATION DURING THE COVID-19 CRISIS  
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Moshe Marvit
May 20, 2020
The Century Foundation
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_ Workers who encounter something that is an immediate threat to
health and safety have few good choices for action. _

United Auto Workers members leave the Fiat Chrysler Automobiles
Warren Truck Plant after the first work shift in Warren, Michigan.,
Gregory Shamus/Getty Images

 

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
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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
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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
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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 [[link removed]] 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,”
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million in annual funding for all its operations nationwide. Since
1975, according to the National Employment Law Project
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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
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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
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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
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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
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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.
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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
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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
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$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
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significant number of whistleblower complaints never even getting
docketed. In 2019
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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
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only 6.2 percent
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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,”
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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
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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
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“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
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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.

Looking Ahead

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.

_Moshe Z. Marvit practices law in Pittsburgh, and is the coauthor,
with The Century Foundation senior fellow Richard D. Kahlenberg,
of Why Labor Organizing Should be a Civil Right: Rebuilding a
Middle-Class Democracy by Enhancing Worker Voice (2012). He has
worked at the National Labor Relations Board and was an editor at
the Employee Rights and Employment Policy Journal. His current
research focuses on labor organizations, excluded workers, and
employment and civil rights. _

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