The federal agency charged with workplace safety has done little to punish companies when their workers get sick or even die from the coronavirus
Scalia says the agency has all the enforcement power it needs under OSHA’s “general duty clause,” which requires employers to generally maintain a safe workplace “free from hazards" that are likely "to cause death or serious physical harm.
" But the agency has only used the general duty clause twice during the crisis when citing employers for not protecting workers from the virus -- when it fined Smithfield and JBS Foods in September. In some workplaces, like hospitals and nursing homes, OSHA has handed employers a stack of citations during Covid-19 for violating its respirator or protective equipment rules. However, in industries where such standards are harder to apply -- like meatpacking plants -- the agency is limited to fining employers under the general duty clause, even in cases where workers died. Management-side attorneys and former Republican OSHA officials say the general duty clause is limited and that it’s difficult legally for the agency to issue citations that rack up thousands of dollars of fines. “These cases depend on the facts,” said Ed Foulke, who led OSHA under President George W. Bush. “OSHA has to follow the rules . . .penalty amounts are determined by a formula. It's not that they can say, 'Oh we're going to hit this person for $100,000 because we're going to teach them a lesson'.” “If somebody dies at work, you would want to think that we're going to show in the penalty amounts that this person's death was worth something,” Foulke added. “But that doesn't always happen.” Democrats have questioned whether politics have played a role in the Trump administration's worker safety efforts during the pandemic.why the Centers for Disease Control and Prevention was "watering down" its recommendations on preventing the spread of Covid-19 at the Smithfield plant in South Dakota by adding phrases like “if feasible" and “if possible.” The lawmakers requested more explanation from the CDC on how and when "outside parties are to be included in the process" of drafting safety recommendations. The pitfalls of OSHA’s decision to not issue a Covid-19 standard have been put on display the most in the meatpacking industry, where the virus has rapidly spread among factory workers. At least 63,234 workers have tested positive for Covid-19 and at least 267 have died, according to data compiled by the Food & Environment Reporting Network. The group estimates that at least 865 meatpacking and food processing plants have had confirmed cases of Covid-19. Labor Department spokesperson Megan Sweeney told POLITICO that it “conducted its investigation and issued its citation in accordance with well-established procedures and legal standards” at Smithfield and JBS and that the fines were “the maximum monetary penalty allowed by Congress.” But both the Ronald Reagan and Barack Obama administrations took a different approach when using the special enforcement power under the general duty clause, issuing multiple citations against employers that resulted in thousands of dollars in fines. In 1988, OSHA fined the same Smithfield meatpacking plant in Sioux Falls -- then owned by John Morrell & Co. --
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