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OSHA Chief Grilled on Virus Enforcement, Lack of Rulemaking (1)

May 28, 2020, 2:31 PM; Updated: May 28, 2020, 8:07 PM

OSHA’s performance during the coronavirus pandemic was center stage on Capitol Hill during a House hearing as Democrats challenged agency administrator Loren Sweatt.

“Deep into this pandemic, OSHA has still not developed any enforceable standards for employers to follow that can protect workers from the airborne transmission of the novel coronavirus,” Rep. Alma Adams (D-N.C.), chair of the Subcommittee on Workforce Protections, said in her opening statement Thursday.

The Occupational Safety and Health Administration’s “existing enforcement tools to combat this pandemic, which include standards covering respirators and personal protective equipment, are inadequate and unused,” Adams said.

Sweatt, the principal deputy assistant labor secretary for OSHA, defended the agency’s decision not to issue a rule specifically covering Covid-19 hazards and the staff’s performance.

“Unfortunately, I believe their efforts have not been properly characterized by some, and that is wrong,” Sweatt told lawmakers in her opening statement.

Inspectors are “initiating thousands of investigations of complaints,” Sweatt said. “Our compliance assistance staff are working with employers across the country to help ensure safe and healthful working conditions for the nation’s workers.”

OSHA had opened 392 virus-related inspections as of May 27, including 292 cases in response to the deaths or hospitalizations of employees.

Only one inspection has been closed with a citation issued, Sweatt said. The citation was for an alleged recordkeeping violation.

As of May 21, OSHA had received 4,268 virus safety and health complaints, of which 2,995 have been closed, Sweatt said. “In addition, OSHA has received 1,328 Covid-19 whistleblower complaints, of which there are 243 complaints currently being screened.”

She explained OSHA’s resistance to issuing a coronavirus rule in favor of releasing industry-specific guidance documents.

“Guidance has allowed the agency a more nimble response to the ever-changing understanding of the virus,” she said.

Republican lawmakers defended the decision, pointing out that the Obama administration had issued guidance, not an emergency or permanent rule, when confronted with contagious diseases such as H1N1 (swine flu) and Ebola.

Democrat Rep. Joe Courtney (D-Conn.) countered that OSHA had issued its 1991 bloodborne disease rule to prevent infections from the human immunodeficiency virus, or HIV. “OSHA created an enforceable standard—a regime—that we now take for granted,” Courtney said.

A House hearing is familiar territory for Sweatt. Before she was appointed to OSHA in July 2017, Sweatt had been a Republican senior policy adviser at the Committee on Education and Labor since 2002.

N95 Mask Ramp-up

Also testifying Thursday was John Howard, director of the National Institute for Occupational Safety and Health, part of the Centers for Disease Control and Prevention.

Howard, a medical doctor and attorney, is serving his third six-year term as the research organization’s director. The term expires in September 2021.

NIOSH and the CDC’s public health experts continue to look at updating guidance for employers, especially those where keeping workers six feet apart is difficult, such as meat processing plants, Howard said. NIOSH has visited several plants at the request of companies and local health officials.

An ongoing problem for health experts is the lack of reliable data on the jobs and workplaces of people who have died from Covid-19, Howard said. States collect the information and Howard hopes the reporting on occupational details will be more consistent as states begin using forms issued by the CDC in mid-May.

NIOSH’s best-known role since the start of the coronavirus pandemic may be as the federal agency that tests and certifies face coverings seeking to be approved as N95 respirators.

Howard said that NIOSH increased the rate of respirator approval and denial decisions during April, from 30 to over 100 decisions per month, by having staff scientists, engineers, and technicians working longer shifts, seven days a week.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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