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One of the debates that has been flaring up recently is whether OSHA has taken the proper course in directing employers on how to protect employees from exposure to coronavirus by focusing on issuing guidance instead of a regulation.
Various workplace safety advocates have insisted that OSHA must issue some specific enforceable standard to hold employers accountable for protecting their employees. Among these advocates are organized labor and their Democrat allies on Capitol Hill. On Tuesday, AFL-CIO President Richard Trumka sent a lengthy letter to Secretary of Labor Gene Scalia excoriating the Department and specifically OSHA for being "missing in action" and "fail[ing] to meet their obligation and duty to protect workers..."
In response, on Thursday, Secretary Scalia issued a strong rebuttal. Scalia's letter takes on Trumka's assertions that OSHA has taken a lax position towards enforcement, or making clear employers are obligated to protect their employees.
As Scalia says, "I appreciate that you may want different actions from OSHA, but to obscure the guidance OSHA has given, and to suggest OSHA is indifferent to worker protection and enforcement, is to mislead employers about their duties and workers about their rights."
He also responds to Trumka's complaint that guidance is considered voluntary with "no obligations for employers to comply." "Your letter disparages OSHA's guidelines as 'only voluntary', suggesting that there are no compliance obligations on employers. That is false--and again misleading employers about their duties."
Finally, Scalia makes a robust case for OSHA's use of guidance instead of a new regulation pointing out that employers are already doing, and required to do, the same steps as a regulation envisioned by Trumka and are likely in violation of OSHA requirements if they are not doing so. Industry specific guidance, as Scalia argues, "is far more informative for workers and companies about steps to be taken in their particular workplaces" and can be modified and updated as new information becomes available in ways that regulations can not.
Secretary Scalia has it exactly right: OSHA has been pumping out an extraordinary amount of useful information to help employers understand the best ways to protect their employees. All of which is backed by the enforceable obligation for employers to be in compliance with the general duty clause, which has never been more appropriate than in the current coronavirus emergency.