If it feels to you as though the Covid-19 emergency is never going to end, that may be because September 13 will mark its six-month anniversary. Six months is a very long time for a public-health emergency to last—too long, we can all agree. But it’s more than enough time for the federal government to convey the message that any business that fails to provide workers reasonable protections on the job from coronavirus will pay dearly for its negligence.
Yet from March 13 to the present day the Occupational Safety and Health Administration (OSHA), the federal agency that policies such matters, has issued—would you like to guess how many citations?
Oh, c’mon, guess.
Do I hear ten? The Trump administration isn’t terribly keen on regulatory enforcement, so probably it’s forced itself to issue about ten citations, right?
Wrong. It’s issued three. The fines levied on the three scofflaws, if combined, would not be sufficient to purchase a new BMW X5.
The first citation, issued in mid-May, went to Winder Nursing, Inc., a retirement home in Winder, Georgia, where six workers were hospitalized. OSHA cited the facility for not reporting the hospitalizations in timely fashion. An initial fine of $6506 was later negotiated down to $3904.
The second citation was issued in July against three nursing home facilities owned by OHNH LLC, an Ohio-based holding company. Seven employees were hospitalized. OSHA wrote up the company for poor face protection. For example, workers were wearing the same N95 masks for as long as seven days. The fine, which will likely be negotiated downward, was $40,482.
The third citation, and the first to any business that wasn’t a nursing home, went this week to a Smithfield pork processing plant in Sioux Falls, S.D. Smithfield did such a lousy job protecting its workers from exposure to Covid that it became a national scandal. The latest count is that 1,294 workers contracted Covid at the pork plant, of whom four died. The company was uncooperative with OSHA’s investigation, initially going to court to block the agency from examining workers’ medical records. The Centers for Disease Control later issued a blistering report on the company’s negligence. Smithfield was a classic bad actor.
Now OSHA has issued its citation and the company must pay … $13,494.
“This is essentially telling the country that a pork shoulder is worth more than a worker’s life,” said David Michaels, who ran OSHA under President Barack Obama and teaches now at the George Washington University School of Public Health.
OSHA claims that $13,494 is the maximum penalty it’s permitted to impose under the law. That may strike you as implausible, and so it is—it’s not true at all. The $13,494 is OSHA’s ceiling for a single serious violation, but there have been plenty of instances in the past when OSHA derived multiple “willful” violations out of one bad action. The only reason OSHA regulators couldn’t in this instance was because they were operating under the agency’s “general duty clause.” That clause is embedded in the 1970 statute that created OSHA; it holds that employers must keep workers “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” For complicated reasons, OSHA can’t easily charge multiple “willful” violations when it’s using the general duty clause. Hence the paltry Smithfield fine of $13,494.
So why was OSHA relying on the general duty clause? Good question! OSHA’s enforcement officials consider the clause one of its weakest enforcement tools, and have seldom used it in the past, even under Trump. (In fiscal year 2018, the general duty clause was applied in only 1.5 percent out of a total of roughly 60,000 OSHA citations.) If the Trump Labor Department, which oversees OSHA, were at all serious about enforcing worker safety during the pandemic, then six months ago it would have issued an “emergency temporary standard” to establish clear rules about what employers must do to protect workers during this emergency. But OSHA refused to, probably at the direction of the White House.
Now the Trump administration has the nerve to claim that its hands are tied. That’s nonsense. When OSHA uses more effective enforcement tools at its disposal, it can collect upwards of $1 million. Under Michaels, for instance, OSHA was able to level a $1.4 million fine in 2016 against a Wisconsin shipyard for multiple “willful egregious” violations of lead safety standards. The state of California this week levied a $200,000 fine for Covid workplace violations that it said were committed by a frozen food manufacturer called Overhill Farms.
The Wisconsin shipyard that got hit for $1.4 million generates about $23 million in annual revenue. Overhill Farms, which paid out $200,000 to California regulators, generates about $200 million. Smithfield, which got hit for less than $14,000, has revenues in the neighborhood of $15 billion.
This isn’t rocket science. Trump’s OSHA isn’t collecting serious fines from employers that put workers’ lives at risk because it doesn’t want to. It doesn’t want to levy the fines, and it doesn’t want to send any signal to businesses that they’ll be held accountable. Under such circumstances, it would be irrational—perhaps even financially irresponsible—for Smithfield, or any other company, to do very much to protect its workers from Covid. And that suits our Covid Denier-in-Chief just fine.
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