Recently, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) released its 30th annual “Death on the Job: The Toll of Neglect” report. Every year, the report highlights the number of states and industries with the most workplace injuries. Though this year’s report focused on data from 2019, not surprisingly, it highlighted the response to COVID-19 in the workplace. Recognizing the partisan divide in responding to the pandemic, the report characterizes the Trump Administration as “totally failing to respond to the COVID-19 pandemic in workplaces” while hailing “[t]he recent election of President Biden [as bringing] promise and hope to a nation and world decimated by the COVID-19 pandemic….” The patchwork of state laws and enforcement mechanisms, the union argues, has resulted in underreporting of COVID-related workplace cases, stating “there remains no comprehensive national surveillance system to collect case information by industry and occupation, and employer reporting of COVID-19 cases still is mandatory only in a few states with specific standards or orders.”
In May 2020, the AFL-CIO petitioned the U.S. Court of Appeals to require OSHA to issue emergency COVID-19 standards, but its efforts were denied. Despite the failed attempt to utilize the court to force action from OSHA, the union is now hoping for a response from the Biden Administration. As part of the flurry of Executive Orders signed in his first days in office, President Biden ordered OSHA to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.” Although the March 15th deadline has come and gone, according to media reports, OSHA’s temporary COVID-19 standard was submitted to the White House’s Office of Management and Budget on April 26, 2021 for review before its release. As the vaccination rate increases and more states ease their restrictions, including mask mandates, a mandatory standard may lead to additional liability for employers that begin to reduce COVID-19 protections in the workplace. Currently, OSHA’s enforcement is based on the general duty clause, which is less specific and may be easier for employers to contest.