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by

Public Justice, et al. 

Dear Secretary Scalia and Ms. Sweatt: 
 
The undersigned organizations call on you to resign immediately because you have failed to perform your sworn duty to enforce the law. As American workers have risen to the challenge during the COVID-19 pandemic, you have, instead, stooped to new lows to jeopardize workers, public health, and our country’s economic recovery. Your inaction has allowed and continues to allow significant, adverse impacts from COVID-19 to fall disproportionately on Black, Latino, and Asian workers. Your failures underscore the urgency with which Congress must act to require the Occupational Health and Safety Administration (“OSHA”) to promulgate an Emergency Temporary Standard. That you have been unwilling to do so on your own demonstrates agency capture and the corporate control of OSHA. Moreover, efforts to pass corporate immunity from COVID-19-related suits is nothing but a handout to shareholders when OSHA has not actually compelled corporations to protect their workers and, even worse, signaled that OSHA would assist in the defense of worker lawsuits.   
 
In passing the Occupational Safety and Health Act (“OSH Act”), Congress declared its objective to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions[.]” 29 U.S.C. § 651. “The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring.” Whirlpool Corp. v. Marshall, 445 U.S. 1, 12 (1980). The OSH Act prescribes a comprehensive enforcement scheme that includes OSHA’s authority to inspect and investigate workplaces without prior notification of the inspection. 29 U.S.C. § 657; 28 C.F.R. § 1903.6. Additionally, OSHA is empowered to issue citations to employers where, “upon inspection or investigation,” OSHA believes that the OSH Act or any standard, rule, or order promulgated under it has been violated. 29 U.S.C. § 658. The OSH Act provides that in addition to complying with specific workplace standards, employers must, and OSHA can require employers to, “furnish to each of [their] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a). Finally, OSHA has the authority to promulgate an Emergency Temporary Standard to protect workers when workers “are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c)(1) (emphasis added).  
 
Under your leadership, the OSHA has failed to effectuate Congress’s objective given the urgency and magnitude of the COVID-19 pandemic. Specifically, you have failed to investigate and enforce violations of the OSH Act as it relates to coronavirus exposure in the workplace for front-line workers. As of July 31, 2020, OSHA (at federal District Court direction) disclosed it had issued four COVID-19-related citations across all workplaces in the nation. No citations at all had been issued to employers in the meat processing industry.  

 

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