Trump Labor Secretary Scalia is M.I.A. as Frontline Healthcare Workers Ask His Help Combating the Coronavirus

Washington DC – All eyes are on Labor Secretary Eugene Scalia to reverse course on the Trump administration’s risky and reckless decision to deprioritize an Obama-era rule that would help protect frontline health care workers dealing with infectious outbreaks like the Coronavirus. Allied Progress called on Scalia to set aside his rigid anti-government ideology and immediately advance this rule in the interest of workplace safety and public health.

Scalia, a longtime corporate attorney, had a history of criticizing government involvement in public safety before taking his post as Labor Secretary. Scalia wrote in 2005: “The Government does not have the sole-or even primary-role in furthering occupational safety and health or compliance with the employment laws.” Scalia also represented eight Business Trade Groups in a lawsuit against OSHA’s cooperative compliance program, which determined particularly dangerous works sites and established protocols to bolster safety.

“The President may not take this public health threat seriously, but workers on the front lines of coronavirus response are counting on Secretary Scalia to do his job regardless,” said Derek Martin, director of consumer watchdog group Allied Progress. “Now is not the time to hide behind rigid ideological arguments as an excuse to ignore workers in need. The Secretary may not like it, but one of most important responsibilities of the Labor Department is enforcing the laws that protect the health and safety of the nation’s workforce. To walk away from that responsibility in the face of this crisis is a very dangerous game.”

WHAT YOU NEED TO KNOW:

Will Donald Trump and Eugene Scalia Set Aside Rigid Ideology To Help Frontline Healthcare Workers Combat The Coronavirus?

The Trump Administration Mothballed An Obama-Era Rule To Protect Healthcare Workers From Infectious Outbreaks Like Coronavirus—And Now Labor Secretary Eugene Scalia Has Yet To Act During The Growing Emergency.

A Proposed Regulation From The Obama-Era Labor Department Could Be Helping Frontline Healthcare Workers With Coronavirus Response Right Now – But The Regulation Was Deemed “Less Urgent” By The Trump Administration.

As U.S. Healthcare Workers Begin To Confront The Spread Of Coronavirus, “A Proposed Regulation Designed To Protect Them From Infectious Diseases […] Languishes Inside A Federal Agency.” “As more than 100 hospital workers remain in self-imposed quarantine in California, a proposed regulation designed to protect them from infectious diseases such as the coronavirus languishes inside a federal agency.” [Kimberly Kindy, “This regulation could protect health-care workers from the coronavirus. It hangs in limbo.,” The Washington Post, 03/05/20]

The Obama Administration Had Begun To Adopt A Regulation To “Require Employers To Provide Protective Gear For Health-Care Workers,” But “The Trump Administration In 2017 Moved It To A Less Urgent, Long-Term Agenda And Work On It Stopped.” “The draft regulation would require employers to provide protective gear for health-care workers and to create infection-control plans, which could include building isolation rooms. The Obama administration was working to adopt the regulation, but the Trump administration in 2017 moved it to a less urgent, long-term agenda and work on it stopped.” [Kimberly Kindy, “This regulation could protect health-care workers from the coronavirus. It hangs in limbo.,” The Washington Post, 03/05/20]

Former OSHA Heads, Healthcare Worker Unions and Congress Have Called For The Regulation To Be Implemented On An Emergency Basis During The Coronavirus Crisis

Congress, Unions, And A Former Occupational Safety And Health Administration (OSHA) Head Are Demanding That The Regulation Be “Expedited” And Requesting That The Labor Department Uses Measures To “Issue A Temporary Emergency Standard When A ‘Grave Danger’” To Workers Arises. “Now, members of Congress, unions representing health-care workers, and the former head of the Occupational Safety and Health Administration (OSHA) are calling for the proposal to be expedited. They are petitioning the Labor Department, which oversees OSHA, to turn to a little-used federal law that allows the agency to issue a temporary emergency standard when a ‘grave danger’ or ‘new hazards’ emerge in the workplace.” [Kimberly Kindy, “This regulation could protect health-care workers from the coronavirus. It hangs in limbo.,” The Washington Post, 03/05/20]

Reps. Bobby Scott (D-VA) And Alma Adams (D-NC) Have Asked Labor Secretary Eugene Scalia To Make It “‘Clear It Is Time’ To Set An Emergency Standard” In Response To Coronavirus. “In a letter sent Thursday afternoon to Labor Secretary Eugene Scalia, Reps. Robert C. ‘Bobby’ Scott (D-Va.) and Alma Adams (D-N.C.) said the ‘widespread epidemic of a virulent novel airborne’ make it ‘clear it is time’ to set an emergency standard.” [Kimberly Kindy, “This regulation could protect health-care workers from the coronavirus. It hangs in limbo.,” The Washington Post, 03/05/20]

An Occupational Health Professor At George Washington University Said, “‘The Framework Is There,’” To Require Employers To Better Protect Healthcare Workers, “‘If OSHA Wanted To Modify The Standard, It Could Put It Out Tomorrow.’”  “The former head of OSHA under President Barack Obama said years of work have gone into the draft regulation, which included seeking and including advice from the health-care industry. That could allow OSHA to move quickly. ‘The framework is there. If OSHA wanted to modify the standard, it could put it out tomorrow,’ said David Michaels, who now works as an environmental and occupational health professor at George Washington University.” [Kimberly Kindy, “This regulation could protect health-care workers from the coronavirus. It hangs in limbo.,” The Washington Post, 03/05/20]

Previously, Eugene Scalia Has Argued That The Government Does Not Have “The Sole-Or Even Primary-Role In Furthering Occupational Safety And Health Or Compliance With The Employment Laws […]”

The DOL’s Occupational Health And Safety Administration (OSHA) Is Responsible For Protecting Workers From Unsafe Work Environments.

DOL’s Occupational Safety And Health Administration (OSHA) Enforces Workplace Safety And Health Standards. “The Occupational Safety and Health Administration primarily administers and enforces the Occupational Safety and Health Act (OSH Act; P.L. 91-596), which provides health and safety standards for workplaces and authorizes DOL to provide assistance and sanctions to enforce compliance.” [“Major Functions of the U.S. Department of Labor,” Congressional Research Service, 09/07/18]

Eugene Scalia Wrote That The Government Does Not Have “The Sole-Or Even Primary-Role In Furthering Occupational Safety And Health Or Compliance With The Employment Laws […]”

While A Partner At Gibson Dunn, Eugene Scalia Wrote A Law Review Article On “Inspection And Enforcement Strategies In Labor And Employment Law,” With A Focus On The Occupational Safety And Health Administration (OSHA). “The subject of this Essay is inspection and enforcement strategies in labor and employment law, with particular focus on the Occupational Safety and Health Administration (OSHA). I approach the subject from two somewhat different perspectives, having been a private practitioner representing clients being investigated and prosecuted by OSHA, and having also served as Solicitor of Labor, with OSHA as one of my clients and with responsibility myself for prosecuting OSHA cases.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

  • Eugene Scalia Was A Partner At Gibson, Dunn & Crutcher LLP At The Time. “Eugene Scalia is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP. He is co-chair of the firm’s Labor and Employment Practice Group and a member of the firm’s Appellate and Constitutional Law Practice Group.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Wrote, “The Government Does Not Have The Sole-Or Even Primary-Role In Furthering Occupational Safety And Health Or Compliance With The Employment Laws,” Arguing That It Is Primarily Left To Employers And Employees. ““The government does not have the sole-or even primary-role in furthering occupational safety and health or compliance with the employment laws generally. Others with those responsibilities include employers and employees, individually and collectively through their labor unions.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Argued That In Lieu Of Government Oversight, “Unions Are Among The Most Effective Advocates For Workplace Safety.” “Unions are among the most effective advocates for workplace safety. In unionized workplaces on a daily basis, unions play an important role in identifying and addressing occupational hazards. When necessary-and at times when not necessary-unions contact OSHA to complain and trigger inspections. So, the question arises, as the government sets its inspection and enforcement priorities, what consideration should be given the fact of union representation at a worksite?” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Has Argued That “OSHA’s [Occupational Safety And Health Administration’s] Inspection Authority Was Openly Used As A Form Of Coercion” And “An Imposition Of Government Power” Under A 1998 Program In Which OSHA Tried To Increase Accountability For Workplaces With High Rates Of Worker Injury.

Eugene Scalia Wrote, “OSHA’s Inspection Authority Was Openly Used As A Form Of Coercion” Under A 1998 Program In Which The Agency Told Employers They Could Either Adhere To Additional Safety Requirements Or Face Increased Inspections. “The most notable example of this approach is a 1998 OSHA program called the ‘Cooperative Compliance Program.’ Under the program, employers with high reported injury rates were told they had been selected for onerous comprehensive ‘wall-to-wall’ inspections. But, they were advised, we will greatly reduce the likelihood of inspection-and any inspections that do occur will be relatively benign-if you agree to do a series of things currently not required by federal law. Under this program, which was invalidated by the D.C. Circuit, OSHA’s inspection authority was openly used as a form of coercion to prompt employers to do things that, at the time, OSHA did not have the authority to require.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005] 

Eugene Scalia Called OSHA Inspections “An Imposition Of Government Power That Causes A Company To Change Its Practices Even Though The Law Does Not Require That It Do So.” “Another (perhaps related) view is that inspection itself is a form of enforcement, in the sense that it is an imposition of government power that causes a company to change its practices even though the law does not require that it do so.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Argued That During Unannounced OSHA Inspections, The Government “Comes Uninvited To Private Property.” “The third view of the purpose of inspections-which is my view, the most common view, and the view that coincides with the Fourth Amendment-is that they are for investigative and enforcement purposes only. OSHA has separate consultation and compliance assistance programs to show employers how to improve workplace safety. But when it comes uninvited to private property, the government has a right of access only when it has probable cause to believe that a violation of a law enforceable by that agency has occurred.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Despite These Arguments, Eugene Scalia Admitted That In OSHA Inspections, “Probable Cause Is Defined Somewhat Loosely.” “In administrative inspection schemes, probable cause is defined somewhat loosely-but the justification for government entry remains the search for a prosecutable violation of the law.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Scalia Has Also Likened OSHA Inspectors To Ronald Reagan’s “Nine Most Terrifying Words In The English Language.”

Eugene Scalia Invoked An Anti-Government Quote From Ronald Reagan—“‘The Nine Most Terrifying Words In The English Language Are: I’m From The Government, And I’m Here To Help.’”—When Discussing OSHA Inspections.

Eugene Scalia Said That OHSA Inspections Were Based On A Philosophy Of “‘We’re The Government And We’re Here To Help.’” “For instance, OSHA inspections may be viewed as a sort of house-call for troubled employers: federally funded corporate consulting intended less to effect compliance with the law and more to help employers find ways to address hazards regardless of whether those hazards violate federal law. Call this approach, ‘We’re the government and we’re here to help.’ Under this view, it does not matter whether violations are found on an OSHA inspection, as long as there has been a chance for the government to reach out and touch an employer.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,” University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Ronald Reagan Once Said, “‘The Nine Most Terrifying Words In The English Language Are: I’m From The Government, And I’m Here To Help.’” [“August 12, 1986 Reagan Quotes and Speeches,” Ronald Reagan Presidential Foundation & Institute, accesed 07/24/19]

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