Wichita workers complained to OSHA about COVID. Will a new standard help enforcement?
Employees who test positive for COVID-19 showing up to work in person the next day. Health care workers not receiving personal protective equipment. Employers not enforcing mask requirements. Workers required to purchase their own COVID-19 testing equipment.
Wichita area workers made these allegations and more over the past year when complaining that their workplace was not safe from the spread of the coronavirus. They filed the complaints with the federal Occupational Safety and Health Administration, part of the U.S. Department of Labor.
A year into the pandemic, the federal agency has not cited any employers in the Wichita area or across Kansas for any of the alleged hazards.
Experts say that’s partly because the workplace safety agency, known as OSHA, doesn’t have any standard in place to enforce coronavirus prevention methods. While that could change by mid-March, some worker advocates still aren’t hopeful that shifts under a new presidential administration will make workplaces in Wichita any more safe from COVID-19.
Proponents are hopeful that OSHA will issue an emergency temporary standard on COVID-19 by March 15, following a late January executive order signed by President Joe Biden that directed the agency to consider if a new standard is necessary.
On Friday, in response to Biden’s executive order, the agency launched a new national emphasis program to focus its enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus.
“It all sounds good for politics, but it’s just a big front,” said Cornell Beard, president and directing business representative for the Machinists Union District Lodge 70 in Wichita, which represents workers at large manufacturers such as Spirit AeroSystems and Textron Aviation.
“They don’t have the manpower.”
Shortly after the executive order, OSHA issued more formal guidance on mitigating and preventing the spread of COVID-19 in the workplace. It included instruction on wearing face coverings, improving ventilation and installing barriers when physical distancing cannot be maintained.
The federal agency is the main outlet for private sector workers in Wichita to express a complaint about safety in their workplace. Public sector employees in Kansas can file a workplace safety complaint with the Kansas Department of Labor.
OSHA has been under fire from worker advocates during the pandemic for not acting quickly enough to prevent coronavirus outbreaks and deaths, such as the ones seen at meatpacking plants.
Across the country, officials did not issue any citations related to COVID-19 until July last year. Since then, most of the penalties have been at health care institutions, long-term care facilities and meatpacking plants — the type of businesses where outbreaks have been in the spotlight and hundreds have died.
“OSHA is committed to protecting America’s workers during the pandemic, and has been working around the clock to that end,” a labor department spokesperson said in an email. “The agency investigates all safety and health violation allegations within OSHA’s jurisdiction, and takes the steps needed to address unsafe workplaces, including enforcement action.”
What is an OSHA standard?
The Occupational Safety and Health Act of 1970 includes the General Duty Clause, which requires employers to keep a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
That clause is different from a standard that OSHA can issue. A standard more specifically includes rules that employers must use to protect workers from harm.
Not a lot of OSHA standards are implicated by the spread of COVID-19, experts say. While there are general industry standards, others are specific to construction, agriculture or other fields.
Without a coronavirus-related standard in place, OSHA often has to cite an employer for COVID-19 issues under the General Duty Clause. An exception is health care institutions, which already have their own standards for respiratory protections and can be cited for those.
“If I were to put my finger on why we’re not seeing a lot of COVID-related citations, it’s because there’s not a specific standard that deals with it,” said Don Berner, an attorney at Foulston Siefkin in Wichita who advises employers on OSHA matters, among other labor law issues.
The General Duty Clause references “recognized hazards,” but it can be difficult to recognize if an employee walks in infected with COVID-19, Berner said. It’s easier to recognize a hazard if it’s a certain type of chemical is emitted in a workplace all day, he said.
“The upside to having a standard is something measurable for everyone to look at and comply with,” Berner said.
The downside, on the other hand, is deciding what the right standard should include.
“How do you protect from something that you’re not even sure is in the room?” Berner said.
When an employee complains to OSHA, the agency makes a decision about whether it will send an inspector to the work site, or simply reach out to the employer and ask it to provide further information.
OSHA often closes complaints without issuing a citation or visiting a workplace. Beard, with the Machinists Union, said that doesn’t mean a safety issue didn’t exist. Rather, he said the federal agency doesn’t have enough staff to properly look into every complaint it receives.
“You can put in as many standards as possible, but who polices them?” Beard said.
He also finds blame in the amount of a fine OSHA places upon employers. While the thousands of dollars in fines might sound high to the average person, Beard said it’s next to nothing for large employers who make millions or billions of dollars.
“That’s one hangup I’ve always had about OSHA,” Beard said. “The fines aren’t severe enough.”
Wichita area OSHA complaints
OSHA publicly releases data on complaints that have been closed, but not for allegations still under investigation. Of those closed complaints, workers have made at least 20 in Wichita city limits.
There is one closed complaint at a business in Derby and two at employers in Harvey County, for a total of 23 complaints in the area. There were no closed complaints listed in Butler, Cowley, Kingman, Reno or Sumner counties as of the data through Feb. 28, the most recently released.
When OSHA receives a complaint, an area office will connect with the employer about any actions it takes to address it. OSHA has one area office in Wichita that covers the private sector across all of Kansas. Nebraska and Oklahoma also have one area office each, while Missouri and Colorado have two area offices each.
In order to close the complaint, an employer must show that the allegations have been abated. If not, the area office may open an inspection, according to the labor department spokesperson.
“Information on the Closed Safety and Health Complaint Data page are listed as closed complaints when employers have shown those complaint items have been abated, or OSHA received a satisfactory response from the employer,” the spokesperson said.
The agency might also close a complaint if it didn’t have reasonable grounds to believe that a violation occurred. In its public data, OSHA does not specify whether it found a complaint to be valid or not.
The complaints in Wichita stem from a wide range of workplaces. Many cite the General Duty Clause as merit for the complaint.
The Wichita area complaints include:
- 5 at manufacturing plants
- 4 at health care facilities
3 at transportation or travel related businesses
- 1 in food processing
- 1 at a day care
- 1 complaint each at a restaurant, a software company, an optical shop, a hair salon, a bank, an animal clinic, real estate offices, an equipment rental company and a pallet company
Notably, there are no closed complaints in the Wichita area at long-term care homes, where inspections and citations have been more common nationwide.
Keeping workers safe from COVID
So if a new OSHA standard won’t bring Wichita workers protection on the job during the pandemic, what will?
Beard tells union members to document well their close contacts if they contract the coronavirus at work. If employees come down with COVID-19 on the job, many of the employers where Machinists Union employees work will pay them to stay home.
An extension of the Families First Coronavirus Response Act, or FFCRA, is more important to workers than a new OSHA standard, Beard said. The federal legislation required some employers to provide paid sick leave for employees who need to quarantine, isolate or look after others who need to stay home because of the coronavirus.
If employees feel they must come to work because they can’t afford to stay home and miss two weeks’ worth of pay, then COVID-19 will continue to spread in workplaces, Beard said. But if a business knew it could have the cost covered to send workers home, they would do so, helping to keep the virus contained.
The FFCRA, a prior provision of the CARES Act, expired at the end of last year. Eligible employers could receive the same incentives for offering paid leave until the end of March, under the December coronavirus relief bill.
Biden initially included an extension of the FFCRA in his proposed $1.9 trillion economic stimulus package. However, the mandatory version of the FFCRA was not included in the bill that passed last week. Instead, the new relief bill extends the tax credit incentives to the end of September for employers who voluntarily choose to follow paid sick leave for COVID-19.
Beard said the best way to help OSHA help workers is to remove the agency from the political realm and staff it appropriately.
“Until there’s some type of third party entity developed, we’ll never actually get a good handle on COVID,” Beard said. “There’s just way too many loopholes.”
This story was originally published March 14, 2021 at 4:37 AM.
