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Punching In: OSHA’s Top Official Faces Hill Grilling Over Virus

May 18, 2020, 10:01 AM

Monday morning musings for workplace watchers

There’s a Tort for That | Sweatt-ing Before Congress| Time for New Deal-Like Ideas?

Chris Opfer: Despite sweeping statements from the White House about protecting businesses from a wide range of pandemic-related liability, it’s becoming increasing clear that Republicans and the Trump administration are likely to be wielding more of a scalpel than a hammer when it comes to carving companies out of certain legal responsibilities.

Senate lawmakers already are turning to federal agencies for guidance that can be used to set basic standards for companies operating during the health-care crisis. Whether those standards are designed to reduce the safety hazards of returning to work or offer rules of the road for job-related decisions based on workers’ infection vulnerability, businesses that follow them likely will feel confident that the feds won’t come after them—and they may even be able to cite some sort of good-faith defense if they’re hauled into court.

Meanwhile, Republicans’ recent focus on agency guidance seems to be a tacit acknowledgment that they don’t have the political power to also shield companies from another type of liability: personal injury lawsuits filed in state courts by customers who say they were exposed to the virus in a store or on company property. That doesn’t mean, however, that congressional lawmakers don’t have the general authority to create that kind of shield.

The Constitution gives Congress the right to enact a wide range of limits or bans on state laws under its authority to regulate interstate commerce. That would allow lawmakers to limit liability for retirement-home operators whose residents get sick, for example, or protect retail-store operators whose customers claim they inadvertently picked up a case of coronavirus in the checkout aisle, legal scholars told me.

“Federal law trumps state law, so long as it’s constitutional,” said Andrew Elmore, a law professor at the University of Miami. “The preemption of common law claims stemming from economic activity will generally be upheld.”

Of course, one might ask: What about states’ rights? A divided Congress makes overhauling state tort laws a GOP pipe dream, at least for now.

Ben Penn: The Labor Department’s top occupational safety official hits Capitol Hill this week for a pandemic-themed grilling before the House Education and Labor Committee.

It’s still unclear whether Wednesday’s subcommittee hearing will be held virtually or in person. Either way, it will be a homecoming for Loren Sweatt, principal deputy assistant secretary of the Occupational Safety and Health Administration. Before joining DOL in 2017, she spent 15 years on the panel’s Republican staff, overseeing the workplace safety portfolio.

Intimate experience with the committee’s agenda should prove helpful for Sweatt, who will be testifying before Congress for the first time. She’s not a Senate-confirmed official, but after three years as OSHA’s temporary chief, Sweatt now has an immense level of responsibility amid the federal government’s virus response.

Sweatt can expect to field tough questions from Democrats about OSHA’s decision not to issue an emergency temporary standard to address workplace coronavirus exposure and to excuse many employers from reporting requirements related to virus contraction on the job.

Unions and progressives have been critical of OSHA’s response, while the administration argues the agency already has the tools it needs to protect workers. It will be interesting to see how the Capitol Hill veteran handles things when she inserts herself into that public debate for the first time on the Hill.

Sweatt’s boss, Labor Secretary Gene Scalia, who was added to the White House’s coronavirus task force late last week, has been a far more public voice for the administration in explaining DOL’s range of pandemic efforts. Yet this seems like a good time to point out that Scalia hasn’t actually testified on the Hill since being sworn into office in September. Before Covid-19, he was on track to appear before appropriations committees to defend the president’s DOL budget request.

I’m told that behind the scenes, Scalia’s quite active talking to Congress members from both parties. But when will the federal government’s top labor official take an oath and face oversight questions about how he’s handled his department’s critical mission of late?

Jaclyn Diaz: House Democrats’ opening bid for the next round of coronavirus-relief negotiations, the $3.3 trillion HEROES Act which the chamber passed Friday, calls for $500 million for a coronavirus contact-tracing program. Contact tracers identify an infected person, connect with all of the people they may have exposed to the virus, and help to inform them.

Public health officials told the Senate Health, Education, Labor, and Pensions Committee during a hearing Tuesday that any viable option for reopening the nation’s economy in a safe, productive way must include testing and contact tracing on a massive scale.

Rep. Andy Levin (D-Mich.), vice chair of the House labor committee, and Sen. Elizabeth Warren (D-Mass.) believe Congress should establish a federal program to address testing and tracing needs that could employ hundreds of thousands of Americans at a time when more than 30 million are unemployed.

Sens. Jeff Merkley (D-Ore.) and Tina Smith (D-Minn.), as well as Levin and Warren, were among a group of Democrats who introduced legislation last week to create what they call the Coronavirus Containment Corps. “A public health response is the tip of the spear for reopening the economy,” Levin told me.

To start, the lawmakers predict more than 300,000 people could be trained by the Centers for Disease Control and Prevention in a short amount of time and employed as contact tracers in their local communities. The lawmakers believe that the unprecedented public health and economic emergency requires New Deal-like approaches.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here next Monday.

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To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

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