Since March 2020, there has been a rising concern among safety advocates and those representing injury victims that businesses and commercial operations are not doing enough to protect workers (as well as customers, clients, residents, etc.) from exposure to the Coronavirus.
The worry is that despite an established duty of care and safety under state and federal law, not enough is being done to keep people safe from COVID because of a corporate predisposition to put profits over people and a halfhearted oversight by safety authorities.
We have discussed this issue with growing apprehension as it applies to those of us who live and work in Indiana and Illinois; see, e.g.:
- Coronavirus Alerts from OSHA: Guidance Given to Employers for Protecting Workers from COVID-19 but No New Legal Standards Issued
- Coronavirus on the Job: OSHA Failing to Keep Workers Safe from COVID-19 but New Notice May Help Victims Prove Their Legal Claims
- Coronavirus on the Job: Legal Standards for Employers to Protect Employees from COVID-19.
Congress Demands Action from Department of Labor
Now, Congress has become involved in the matter. On September 29, 2020, Illinois Senators Dick Durbin and Tammy Duckworth joined with eighteen (18) other members of the Senate in a written demand for information and action from the Department of Labor (DOL) and its Occupational Safety and Health Administration (OSHA) regarding the agency’s dealings regarding the Coronavirus. The Labor Department was given a deadline of October 16, 2020, to respond.
Illinois Senator Duckworth explains the Senators are demanding “….immediate action to protect workers from COVID-19 exposure, illness and death on the job….”
Read the complete letter sent to Eugene Scalia, Secretary of the Department of Labor here.
Serious Concerns about OSHA Actions During Coronavirus Pandemic
Points from the letter include (quoting from the correspondence, omitting its footnotes):
1. Inadequate Fines for Discovered Violations
“The fines DOL recently imposed on employers for failing to protect their workers from COVID-19 were inadequate and suggest your Department does not fully appreciate the life or death impact of strong enforcement of worker safety standards.” (Letter, page 1)
2. Voluntary Compliance and No Emergency Standard for COVID-19
“… [A]n Emergency Temporary Standard (ETS) would establish an explicit, uniform, enforceable standard for COVID-19 worker safety. Instead of taking this common sense step in response to a public health crisis that has claimed over 200,000 American lives, DOL has relied instead on voluntary compliance with voluntary guidance. Your refusal to issue an ETS has undoubtedly exposed more workers to the coronavirus and continues to put their health and safety at risk.” (Letter, page 1)
3. Over 90% of COVID Complaints Closed; Only 11.7% Opened an OSHA Inspection
“As of September 27th, OSHA headquarters had received 9,076 complaints from workers about unsafe workplaces. State-level OSHA offices had received 27,925 complaints…. [F]ederal OSHA opened an inspection in response to only 11.7 percent of the complaints received; however, it is unclear how many of these so-called “inspections” involved an on-site facility inspection, which is critically important to enforcing the law. The vast majority of complaints never received an inspection, and more than 90 percent of all of the complaints have already been closed.” (Letter, pages 1 – 2).
4. Questionable Inspection Practices: Remote Inspections Go Against Required On-Site Procedure
“OSHA’s procedures require an on-site inspection to be conducted in response to a formal complaint that includes a report of a violation of the law that exposes employees to physical harm or that an imminent danger of death or serious injury exists. It is clear, however, that these procedures are not being followed based on your disclosure that many formal complaints resulted in just a letter to the employer and some inspections are done remotely. Further, OSHA is failing to follow its procedures because the agency is not responding with an onsite inspection following reports of COVID-19-related fatalities. A remote inspection cannot effectively identify imminent danger or physical harm that workers face on the job. Despite our requests, you have refused to provide details on the number of inspections that have included on-site inspections, which is the best way to uncover all the workplace risks workers face. We worry that number is very small given DOL’s record to date of minimizing worker safety during the COVID-19 pandemic.” (Letter, page 2).
5. Inadequate Fines and Citations May Encourage Businesses to Breach Duty of Care Regarding COVID Protections
“…OSHA’s website indicates that citations and fines have been issued against only seven employers that did not protect their workers from COVID-19, and five of them were issued just in the last three weeks. The citations and fines were wholly inadequate and may even create incentives for employers to “make these workers work faster and harder in the most unsafe working conditions imaginable.” For example, Smithfield Package Meat Corp., a $15 billion company, received a $13,494 fine after OSHA found that 1,300 workers contracted and four died from COVID-19 at the Sioux Falls, South Dakota, facility. The fine amounted to approximately $10 for each worker who contracted the virus….” (Letter, page 2).
6. OSHA Press Releases Falsely Claimed Fines Were Maximum Allowed By Law
“OSHA’s press releases announcing these COVID-19 citations claim that the fines imposed were the maximum allowable under the law, but that appears to be simply untrue. OSHA had the option to issue multiple citations for each area of the facilities where proper precautions were not implemented, which would have multiplied the total fine amount per company. In addition, OSHA elected to treat each citation as serious, instead of willful or egregious, which would have allowed for fines up to $134,937 to be levied. In fact, your Department chose not to impose the maximum penalty allowable under the law. Instead, by issuing unconscionably small fines in response to worker fatalities, the Trump Administration made clear it will continue to put the priorities of businesses before the safety and health of workers and allow companies to endanger their workers’ lives with impunity.” (Letter, page 3).
Congress Investigation: Questions To Be Answered by DOL and OSHA
Not only have the almost two dozen Senators voiced the above concerns over OSHA’s oversight of public health and safety practices during the COVID Pandemic, it appears that a Congressional investigation has begun into OSHA’s activities. The Senators are demanding answers from the Department of Labor by October 16, 2020.
Again, from the letter (quoting from the correspondence, with footnotes omitted), Congress is asking for things like:
- how many phone/fax investigations OSHA has conducted in response to COVID-19 complaints from workers.
- how many meatpacking and poultry workplaces where phone/fax investigations were conducted faced COVID-19 outbreaks following the failure of OSHA to conduct an on-site inspection.
- total number of on-site inspections that OSHA has completed in response to receiving a formal complaint regarding COVID-19 workplace safety.
- number of complaints referred by a whistle blower investigator that have received on-site inspections.
- total number of formal complaints that have not received on-site inspections.
- justification for OSHA’s decision to allow remote inspections in response to formal complaints in contravention of OSHA’s guidance.
- total number of remote inspections that OSHA has completed related to COVID-19 safety complaints.
- complete list of facilities for which OSHA has conducted a remote inspection.
- detailed accounting for the procedures followed during a remote inspection.
- indicate whether OSHA has given any employer … advance notice about an on-site or remote inspection.
- OSHA’s press releases about the citations issued on September 10th and 11th indicate that the fines issued were the maximum allowable under the law. … point to the citation in U.S. statute or provide a legal explanation why issuing a willful violation, which carries a higher fine maximum, was not allowable under the law.
- explain why OSHA decided not to issue multiple citations against Smithfield Packaged Meat Corp. and JBS Foods Inc. for each area in the facilities in which the employers failed to protect their employees from COVID-19.
- indicate whether DOL will post a copy of each OSHA citation related to COVID19 on DOL’s website in a manner that is easily accessible to the public.
- indicate whether OSHA will commit to linking to the citation in any press release issued about the citation.
COVID Injury Victims and Business Duty of Care under State and Federal Law
As for the October 16, 2020, deadline imposed by the Senators, it is not clear how (or if) they have received a complete response from OSHA or the Labor Department. On that day, the DOL issued a single press release on the issue, announcing that $1,222,156 in fines had been imposed by OSHA since the beginning of the pandemic.
It is undisputed that many are concerned that OSHA is failing to investigate enough businesses and job sites for COVID safety precautions and violations. Moreover, the total in monetary fines (even at the latest $1,222,156 amount) does not jive with the enormous revenues generated by employers and thus, appears to confirm the Senators’ concern that not only are employers not being sufficiently punished for violating their duties of care, but they are indirectly being encouraged to do so.
Today, the reality in Indiana and Illinois, as well as the rest of the country is that job sites may be very risky for exposure to the Coronavirus and workers cannot depend upon their employers to keep them safe from harm. As has been all too true in most serious personal injury and wrongful death cases at the workplace, the temptation to put profits over people is simply too great for these companies – and workers and their families suffer as a result.
Legally, it may well be that the real weapon against corporate malfeasance in failing to protect workers from the Coronavirus will be in courtrooms and the legal claims for injuries brought by injured employees and their loved ones in the aftermath of employer breaches of established duties of care.
Awards for injury damages – and in some situations, punitive or exemplary damages for employers that have intentionally and flagrantly ignored known safety measures to protect against COVID exposure — may be the ultimate means to get these companies to do the right thing regarding COVID-19.
For more on work-related Coronavirus Injuries, see:
- Coronavirus: Employer Liability for Worker’s Family Injuries Caused by COVID-19 Exposure
- COVID-19 Workers’ Compensation Claims: Illinois versus Indiana
- COVID Whistleblowers: When Employers Recklessly Fail to Protect Against Coronavirus Exposure
- Coronavirus: COVID Violations, OSHA Inspections, and Employer Liability Claims in Indiana and Illinois
- Coronavirus Reopening in Indiana and Illinois: Duty of Care to Protect Employees against COVID-19 Exposure.
If you or a loved one has suffered from COVID-19 and suspect exposure while in the job site, then there may be legal avenues for justice available to you. Please be careful out there!
