Under the Trump Administration, the Occupational Safety and Health Administration (“OSHA”), failed to protect workers from COVID-19, which has led to deadly workplace outbreaks of the virus. OSHA’s failures began when it refused to produce legally-binding rules, known as emergency temporary standards, that would mandate the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. In addition, while OSHA did produce non-binding guidance for employers, that guidance was unclear and fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential outbreaks in workplaces in their early stages. OSHA also refused to use its enforcement authority in a way that would encourage employers to use risk-mitigation strategies in the workplace. Rather than increasing inspections to send a signal that employers need to protect workers from COVID-19, OSHA conducted fewer inspections during the pandemic than it had in previous years. Essentially, OSHA has provided a playbook of what not to do in a pandemic. This Article exposes the details of OSHA’s failed response to COVID-19, outlines actions that would be effective in protecting workers during a pandemic, and recommends structural, legislative changes that would enable OSHA to better respond to pandemics in the future.



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