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OSHA Information Throttle Threatens Worker Safety, Advocates Say

Oct. 29, 2020, 3:51 PM

U.S. Labor Department decisions to limit publicly available information about worker safety infractions and punishments could help fuel the nationwide resurgence of the coronavirus, some employee advocates say.

The Occupational Safety and Health Administration last month decided it would stop issuing the detailed citations that typically had accompanied its press releases announcing workplace enforcement actions, making them available only upon the filing of a Freedom of Information Act request.

Within days of that change in policy, Deputy Secretary of Labor Patrick Pizzella issued a memorandum to the heads of OSHA and five other departmental sub-agencies, instructing them to discontinue issuing the new-charge press releases themselves, citing concerns that businesses would suffer reputational damage before they could contest the allegations. That directive became public last week.

Though OSHA has continued to issue weekly reports on the aggregate number of businesses cited for coronavirus pandemic-related infractions, identifying recent violators and the total value of assessed fines, Duke University public policy professor Matthew Johnson said the lack of more specific information could prompt an increase in worker infections during the pandemic.

“All of this is misguided,” said Johnson, who has studied the effect that publicizing OSHA violation details has on employers’ compliance with safety regulations.

“One of the key rationales behind the releases is to enable workers to find out which employers are taking actions to protect them and they also lead to enormous compliance by employers,” Johnson said. “In the absence of a union or any sort of publicity, other than word of mouth, it’s unlikely workers would have many avenues to find out about employers’ behavior.”

Change in Procedure

Issued Sept. 24, Pizzella’s press release directive came just as the number of confirmed coronavirus cases began climbing anew and amid criticism that the scale of OSHA’s fines are insufficient to compel many companies to be more proactive about worker protection.

The workplace safety regulator said last week that it has cited 112 establishments for pandemic-related violations, imposing $1.6 million in fines, which may be contested. As of Oct. 26, the agency has received 9,741 Covid-19-related worker safety complaints, and closed 94% of them, according to its latest data. States have gathered 31,064 Covid-19 complaints and closed 78% of the cases.

Asked whether industry complaints prompted OSHA’s end to press releases during the Covid-19 pandemic, Labor Department spokeswoman Megan Sweeney said in an emailed statement the agency “decided to streamline announcements to make it easier for the public to see all of the establishments that were issued citations related to COVID,” instead issuing weekly announcements rounding up all employer citations.

“All employers must post a citation at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed,” Sweeney said.

The releases are unfair to companies, said former OSHA head Ed Foulke, now a management-side attorney in the Atlanta office of Fisher & Phillips.

“It’s like convicting an individual before they have their trial,” Foulke said in an interview. “I always thought there could be a way for an employer to bring a defamation lawsuit or interference with business case that could be brought against the agency.”

And there have been filings brought against the agency for its releases.

Most recently, in August, a Wisconsin construction firm that was mistakenly cited by OSHA on Aug. 31 sued the agency in the U.S. District Court for Western District of Wisconsin, claiming it lost customers after OSHA publicized the alleged safety violations and didn’t promptly drop the citations.

A&A Environmental Services Inc. of Poynette, Wis., says the federal regulator had meant to cite a firm with a similar name, A&A Environmental Inc., also located in Poynette.

When Releases Stopped

“Press releases seem like a silly fight, but they’re critical for stopping employers’ bad behavior, U.S. Sen. Elizabeth Warren (D-Mass.) said in an Oct. 26 tweet. In another social media post, she added, “Throughout this pandemic, the @USDOL has bent over backwards to let employers know they won’t face real accountability for breaking the law and putting their workers at risk.”

The agency issued five single-party press releases regarding employers who were cited for coronavirus cases immediately before the new policy took effect, the first reporting a $13,494 fine imposed on Smithfield Packaged Meats Corp. for a serious general duty clause citation. The notices ended the next day, with the last citation announcement against CarePlus Bergen Inc., a New Jersey health-care firm.

Smithfield intends to contest the citations with the Occupational Safety and Health Review Commission, which oversees employer appeals of citations, company spokeswoman Keira Lombardo told Bloomberg Law. She declined to say whether the company had complained to OSHA about its press statement.

“We took extraordinary actions to keep our employees healthy and safe so that we could fulfill our obligation to the American people to protect and maintain the food supply. OSHA then used what we had done as a model for its April 26 guidance. We have incurred incremental expenses related to COVID-19 totaling more than $600 million to date,” she said.

“The fact is that the Sioux Falls community experienced an early spike in COVID-19 cases, which impacted our plant. We responded immediately, consulting with CDC, South Dakota Department of Health, USDA and many others. We also simultaneously and repeatedly urged OSHA to commit the time and resources to visit our operations in March and April. They did not do so,” Lombardo said.

A spokesperson from CarePlus Bergen didn’t respond to emails requesting comment on whether it complained to the agency about the regulator’s announcement.

“The point of the publicity was a way to let companies know OSHA was finding and citing them as a mechanism for enforcement,” said Debbie Berkowitz, worker health and safety program director with the National Employment Law Project. She was a senior policy adviser for OSHA during the Barack Obama administration, which prioritized issuing press releases about company citations.

“This was one way of communicating to companies that they can’t cut corners on the safety of workers,” she said. “I think the lack of transparency is all about trying to appease big business and businesses that cut corners and got caught.”

Eric Frumin, health and safety coordinator for the union-affiliated Change to Win in New York City, said he expects to see a correlation between an increase in infections and the decrease in publicly available information from OSHA.

“With already-weak reporting, the less information we have from OSHA, and the less we know about the increase of cases—it’s likely that a cloak of secrecy will hide indicators of a worsening problem,” he said. “Whether it’s half the problem or the tip of the iceberg is hard to tell.”

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com