[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE FEDERAL GOVERNMENT'S
ACTIONS TO PROTECT WORKERS
FROM COVID-19
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 28, 2020
__________
Serial No. 116-57
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the: https://edlabor.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
41-104 PDF WASHINGTON : 2021
--------------------------------------------------------------------------------------
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Lloyd Smucker, Pennsylvania
Donald Norcross, New Jersey Jim Banks, Indiana
Pramila Jayapal, Washington Mark Walker, North Carolina
Joseph D. Morelle, New York James Comer, Kentucky
Susan Wild, Pennsylvania Ben Cline, Virginia
Josh Harder, California Russ Fulcher, Idaho
Lucy McBath, Georgia Steve Watkins, Kansas
Kim Schrier, Washington Ron Wright, Texas
Lauren Underwood, Illinois Daniel Meuser, Pennsylvania
Jahana Hayes, Connecticut Dusty Johnson, South Dakota
Donna E. Shalala, Florida Fred Keller, Pennsylvania
Andy Levin, Michigan* Gregory F. Murphy, North Carolina
Ilhan Omar, Minnesota Van Drew, New Jersey
David J. Trone, Maryland
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA S. ADAMS, North Carolina, Chairwoman
Mark DeSaulnier, California Bradley Byrne, Alabama,
Mark Takano, California Ranking Member
Pramila Jayapal, Washington Mark Walker, North Carolina
Susan Wild, Pennsylvania Ben Cline, Virginia
Lucy McBath, Georgia Ron Wright, Texas
Ilhan Omar, Minnesota Gregory F. Murphy, North Carolina
Haley M. Stevens, Michigan
C O N T E N T S
----------
Page
Hearing held on May 28, 2020..................................... 1
Statement of Members:
Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 6
Byrne, Hon. Bradley, Ranking Member, Subcommittee on
Workforce Protections...................................... 8
Prepared statement of.................................... 11
Statement of Witnesses:
Howard, Dr. John,MD, MPH, JD, LLM, MBA, Director, National
Institute for Occupational Safety and Health, Washington,
D.C........................................................ 25
Prepared statement of.................................... 27
Sweatt, Ms. Loren, Principal Deputy Assistant Secretary,
Occupational Safety and Health Administration, Washington,
D.C........................................................ 15
Prepared statement of.................................... 17
Additional Submissions:
Chairwoman Adams:
Letter dated January 30, 2020............................ 109
Letter dated March 5, 2020............................... 136
Letter dated March 18, 2020 from the U.S. Department of
Labor.................................................. 113
Letter dated May 15, 2020................................ 123
Letter dated May 20, 2020 from AFSCME.................... 115
Letter dated May 20, 2020 from the U.S. Department of
Health and Human Services.............................. 118
Letter dated May 26, 2020 from the U.S. Department of
Labor.................................................. 125
Letter dated May 27, 2020 from the United States Senate.. 128
Prepared statement from National Safety Council (NSC).... 132
Letter dated May 29, 2020 from Chairman Scott............ 138
Letter dated June 10, 2020 from the U.S. Department of
Health and Human Services.............................. 140
Prepared statement from UFCW............................. 142
Mr. Byrne:
Letter dated April 30, 2020.............................. 145
Letter dated May 27, 2020 from the American Hospital..... 96
Letter dated May 28, 2020 from the Coalition for
Workplace Safety (CWS)................................. 100
Letter dated May 28, 2020 from the National Association
of Manufacturers....................................... 104
Questions submitted for the record by:
Chairwoman Adams
Mr. Byrne
Jayapal, Hon. Pramila, Congressman from the State of
Washington............................................. 156
Murphy, Hon. Gregory F., a Congressman from the State of
North Carolina......................................... 151
Scott, Robert C. ``Bobby'', a Congressman from the State
of Virginia............................................ 153
Responses to questions submitted for the record by:
Dr. Howard............................................... 158
Ms. Sweatt............................................... 177
EXAMINING THE FEDERAL GOVERNMENT'S
ACTIONS TO PROTECT WORKERS
FROM COVID-19
----------
Thursday, May 28, 2020
House of Representatives,
Subcommittee on Workforce Protections,
Committee on Education and Labor,
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 10:19 a.m., in
Room 2175, Rayburn House Office Building, Hon. Alma Adams
[chairwoman of the subcommittee] presiding.
Present: Representatives Adams, Takano, Jayapal, Wild,
McBath, Stevens, Scott (ex officio), Byrne, Walker, Cline,
Wright, Murphy, and Foxx (ex officio).
Also Present: Representatives Levin, Shalala, Bonamici,
Courtney, Castro, Roe, Walberg, Guthrie, Comer, Grothman,
Watkins, Meuser, Smucker, Johnson, and Keller.
Staff Present: Tylease Alli, Chief Clerk; Jordan Barab,
Senior Labor Policy Advisor; Ilana Brunner, General Counsel;
Ijeoma Egekeze, Professional Staff; Christian Haines, General
Counsel; Sheila Havenner, Director of Information Technology;
Eli Hovland, Staff Assistant; Stephanie Lalle, Deputy
Communications Director; Jaria Martin, Clerk/Special Assistant
to the Staff Director; Richard Miller, Director of Labor
Policy; Katelyn Mooney, Associate General Counsel; Max Moore,
Staff Assistant; Mariah Mowbray, Staff Assistant; Veronique
Pluviose, Staff Director; Joshua Weisz, Communications
Director; Cyrus Artz, Minority Staff Director; Gabriel Bisson,
Minority Staff Assistant; Courtney Butcher, Minority Director
of Member Services and Coalitions; Rob Green, Minority Director
of Workforce Policy; Jeanne Kuehl, Minority Legislative
Assistant; John Martin, Minority Workforce Policy Counsel;
Hannah Matesic, Minority Director of Operations; Carlton
Norwood, Minority Press Secretary; and Kelly Tyroler, Minority
Professional Staff Member.
Chairwoman Adams. Good morning. The Subcommittee on
Workforce Protections will come to order.
Welcome, everyone. I note that a quorum is present. I note
for the Subcommittee that Mr. Courtney of Connecticut, Ms.
Bonamici of Oregon, Mr. Norcross of New Jersey, Dr. Shalala of
Florida, Mr. Levin of Michigan, Mr. Castro of Texas, Dr. Roe of
Tennessee, Mr. Walberg of Michigan, Mr. Guthrie of Kentucky,
Mr. Grothman of Wisconsin, Mr. Smucker of Pennsylvania, Mr.
Banks of Indiana, Mr. Comer of Kentucky, Mr. Watkins of Kansas,
Mr. Meuser of Pennsylvania, Mr. Johnson of South Dakota, Mr.
Keller of Pennsylvania, are all permitted to participate in
today's hearing, with the understanding that their questions
will come only after all Members of the Subcommittee on
Workforce Protections on both sides of the aisle who are
present, either in person or via remote participation, pursuant
to House Resolution 965 and the accompanying regulations
thereto, have had an opportunity to question the witnesses.
The Subcommittee is meeting today for a hearing to hear
testimony on examining the Federal Government's actions to
protect workers from COVID-19. All microphones, both in the
hearing room and for those Members participating remotely, will
be kept muted as a general rule to avoid unnecessary background
noise. Members will be responsible for unmuting themselves when
they are recognized to speak or when they wish to seek
recognition.
While a roll call is not necessary to establish a quorum in
official proceedings conducted remotely or with remote
participants -- participations, wherever there is an unofficial
proceeding with remote participation, the Clerk will call the
role to help make clear who is present at the start of the
proceeding.
At this time, I ask the Clerk to call the roll.
The Clerk. Chairwoman Adams?
Chairwoman Adams. Present.
The Clerk. Mr. DeSaulnier?
[No response.]
The Clerk. Mr. Takano?
Mr. Takano. Present.
The Clerk. Ms. Jayapal?
[No response.]
The Clerk. Ms. Wild?
Ms. Wild. Present.
The Clerk. Mrs. McBath?
Mrs. McBath. Present.
The Clerk. Ms. Omar?
[No response.]
The Clerk. Ms. Stevens?
Ms. Stevens. Present.
The Clerk. Chairman Scott?
Mr. Scott. Present.
The Clerk. Mr. Byrne?
Mr. Byrne. Here.
The Clerk. Mr. Walker?
Mr. Walker. Here.
The Clerk. Mr. Cline?
Mr. Cline. Here.
The Clerk. Mr. Wright?
[No response.]
The Clerk. Mr. Murphy?
[No response.]
The Clerk. Ms. Foxx?
[No response.]
The Clerk. Chairwoman Adams, this concludes the roll call.
Chairwoman Adams. Thank you very much.
Pursuant to Committee Rule 7(c), opening statements -- let
me remind all of the Committee Members, whether you are here or
if you are particularly remote, please mute your microphone.
Thank you.
Pursuant to Committee Rule 7(c), opening statements are
limited to the Chair and the Ranking Member. This allows us to
hear from our witnesses sooner and provides all Members with
adequate time to ask questions.
I recognize myself now for the purpose of making an opening
statement.
Today's Subcommittee hearing will explore the performance
of the Federal Government in protecting worker safety during
the COVID-19 pandemic. I want to thank OSHA Deputy Assistant
Secretary Sweatt and NIOSH Director Howard for joining us
today.
The COVID-19 pandemic has resulted in the worst worker
safety crisis in OSHA's 50-year history. Nothing compares. In
the past 4 months, more than 62,000 healthcare workers who we
have asked to risk their lives without protective equipment
have been diagnosed with COVID-19 and at least 291 have died.
And this is an underestimate. According to CDC, these shocking
numbers are a mere fraction of the true toll due to the absence
of reporting by as many as 27 States, New York City, and the
District of Columbia.
As we know, infection outbreaks have not been limited to
healthcare facilities. More than 17,000 meat-processing workers
have been infected and an estimated 66 have died. One Iowa
Tyson plant saw 60 percent of its employees test positive. A
Greely, Colorado, meat-packing plant closed after hundreds fell
ill. Although the plant promised to test every worker before
reopening, the plant identified so many positive cases that it
stopped testing and reopened anyway.
Prisons, long-term care facilities, grocery stores,
transportation systems, and warehouses have all experienced
deadly outbreaks. Earlier this month, the CDC reported 2,778
infections and 15 deaths among staff employed in correctional
and detention facilities. From late January to late April,
fully 36 percent of all reported infections at correctional
facilities were suffered by staff.
At least six employees of one warehouse in New York have
died from COVID-19. 129 New York City transit workers have died
of the virus.
As of last week, 1,424 Veterans Administration employees
have been diagnosed with COVID-19 and 31 have died.
Some 2,400 postal workers have tested positive and 6 have
died from COVID-related illnesses. United Parcel Service is
facing an outbreak of 36 cases at its facility in Tucson.
But as we will discuss today, we don't really know the toll
to workers because this Nation has no system for collecting
data on COVID-19 infections in the workplace, and employers are
not obligated to publicly report these infections. Some
government agencies refuse to make this information public due
to employer concerns about adverse publicity, leaving workers
and the public unaware of what risks they are facing.
We cannot lose sight of the fact that this is largely a
tragedy inflicted on our Nation's essential workers, people who
don't have a choice on whether they have to go to work, people
who don't have a choice on whether they -- and many of those
are frontliners. They are low-income workers and
disproportionately people of color who don't have the luxury of
teleworking from home.
COVID-19 is largely a workplace disease and a community
tragedy. In Iowa, Nebraska, South Dakota, coronavirus cases
linked to meat workers represent 18, 20, and 29 percent of the
States' total cases, respectively, according to the
environmental working group. My home State of North Carolina
leads the Nation with the number of meat-packing plants facing
an outbreak, with the State Department of Health and Human
Services reporting that at least 23 plants have outbreaks with
more than 1,300 worker infections.
Yet OSHA, the agency that this Nation has tasked to protect
workers, have been largely invisible. It has failed to develop
the necessary tools that it needs to combat this pandemic and
it has failed to fully use the tools that it has, instead,
focusing principally on issuing press releases and voluntary
guidance.
This hearing will focus on why that is and the price that
this Nation's workers are paying for OSHA's inaction.
Deep into this pandemic, OSHA has still not developed any
enforceable standards for employers to follow that can protect
workers from the airborne transmission of the novel
coronavirus. And OSHA's existing enforcement tools to combat
this pandemic, which include standards covering respirators and
personal protective equipment, are inadequate and unused.
While guidance issued by the Centers for Disease Control
and Prevention can be useful, it is not binding. Only OSHA can
enforce safe working conditions.
And although OSHA says it uses its enforcement authority to
protect workers, OSHA's own data shows that the majority of its
inspections are conducted only after workers have died. And
OSHA has conducted complaint inspections for less than 1
percent of the complaints filed.
While the Secretary of Labor says it does not need an
Emergency Temporary Standard because OSHA already has the tools
that it needs to enforce its guidelines through the general
duty clause, the embarrassing truth is that OSHA has not issued
a single citation under the general duty clause to enforce that
guidance. Not one.
This worker safety crisis was clearly foreseeable, and OSHA
was warned. It was clear after the H1N1 swine flu, the pandemic
in 2009, that an infectious disease standard was needed that
requires employers to assess the infectious disease risks in
the workplaces and mitigate the hazards. Such a standard was
well along the way at the beginning of the Trump
Administration, but in February 2017, that draft standard was
mothballed and relegated to the long-term regulatory agenda,
where it languishes today.
On January 1, I joined Chairman Bobby Scott in calling on
OSHA to put the infectious disease standard back on the active
agenda. In that letter, we also urged OSHA to issue a
compliance directive for the healthcare sector and to issue an
Emergency Temporary Standard if the situation deteriorated. At
the time of our request, there were just five confirmed COVID-
19 infections in the U.S.
Hearing nothing back, on March 5, we wrote OSHA again
describing how hundreds of healthcare workers had been exposed
and stated the obvious, that OSHA urgently needed to issue an
Emergency Temporary Standard, an ETS.
In mid-March, OSHA rejected an ETS on the grounds that the
healthcare industry fully understands the gravity of the
situation and is taking the appropriate steps to protect its
workers.
In April, with more than 720,000 infections nationwide,
OSHA finally issued enforcement guidance but only covering the
healthcare sector.
In mid-May, as workers continued to face risks of
infection, illnesses, and death, the agency is still refusing
to issue an Emergency Temporary Standard to protect workers
from exposure to coronavirus.
And here is what OSHA Act says. It says, ``shall provide .
. . for an Emergency Temporary Standard'' if it determines
``that employees are exposed to a grave danger . . . '' from
``new hazards,`` and ``that such emergency standard is
necessary to protect employees from such danger.''
Circumstances like this pandemic are the exact reason that
this authority exists, yet OSHA continues to sit on the
sidelines.
So my question to the Secretary of Labor is, after tens of
thousands of workplace infections and hundreds of worker
deaths, why is OSHA missing in action?
OSHA's failure to take meaningful action has sent a clear
message to workers across the country that they are on their
own.
On Friday, May 15, the House of Representatives passed The
Heroes Act, H.R. 6800, which included the ``COVID-19 Every
Worker Protection Act,'' introduced by Chairman Scott,
Representative Shalala, and myself. The bill directs OSHA to
issue an Emergency Temporary Standard with 7 days to protect
workers in hospitals, meat-packing plants, and retail stores,
restaurants and offices and shipyards, and other workplaces
where a person may face risk from exposure. The Heroes Act
would also prohibit employers from retaliating against workers.
As the States across the country begin to reopen, more
workers will be at risk of infection unless OSHA starts doing
its job. And if the reopening of workplaces drives up infection
rates, States will be forced to reinstate stay-at-home orders
which do further damage to our economy.
The only logical conclusion I can draw is that OSHA's
inadequate response to this pandemic has been informed more by
politics rather than modern science. The necessity to protect
workers should not be cramped by stale ideological notions
about regulation, nor campaign slogans about repealing two
regulations for every new one that is created.
Today, we will explore and hopefully answer why there has
been a lack of political will in the face of this public health
disaster, and we will learn why no one seems to care enough to
even track the number of workers who are getting sick and
dying.
And finally, I feel the need to respond to two items in Ms.
Sweatt's written testimony. First, we note that because of a
lawsuit, Ms. Sweatt will refuse to answer any questions about
an Emergency Temporary Standard. And I want to note for the
record that there is no legal basis for this refusal. It is
purely a political statement.
And secondly, I want to respond to Ms. Sweatt's testimony
which implies that criticism of OSHA's failure to issue an
emergency standard or enforce existing standards does a
disservice to the hardworking men and women of OSHA. No one has
more respect for the dedicated men and women -- or the
dedicated staff of OSHA and the hard work that they do every
day--than this Committee, as evidenced by our advocacy for the
agency's budget and the opposition to the torrent of rollbacks
to worker safety protection.
The failure to completely address the life-threatening
hazards that working Americans are facing from COVID-19 is not
the fault of OSHA professional staff, but rather due to the
unfortunate decisions of OSHA's political leadership.
I would like to now yield to the Ranking Member, Mr. Byrne,
for his opening statement.
Mr. Byrne, you are recognized.
[The statement of Chairwoman Adams follows:]
Prepared Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on
Workforce Protections
Today's Subcommittee hearing will explore the performance of the
federal government in protecting worker safety during the COVID-19
pandemic. I want to thank OSHA Deputy Assistant Secretary Sweatt and
NIOSH Director Howard for joining us today.
The COVID-19 pandemic has resulted in the worst worker safety
crisis in OSHA's 50-year history. Nothing compares.
In the past 4 months, more than 62,000 health care workers, who we
have asked to risk their lives without protective equipment, have been
diagnosed with COVID-19 and at least 291 have died. And this is an
underestimate. According to CDC, these shocking numbers are a mere
fraction of the true toll due to the absence of reporting by as many as
27 states, New York City and the District of Columbia.
As we know, infection outbreaks have not been limited to health
care facilities.
More than 17,000 meat processing workers have been infected and an
estimated 66 have died. One Iowa Tyson plant saw 60% of its employees
test positive. A Greely Colorado meatpacking plant closed after
hundreds fell ill. Although the plant promised to test every worker
before reopening, the plant identified so many positive cases that it
stopped testing and reopened anyway.
Prisons, long-term care facilities, grocery stores, transportation
systems and warehouses have all experienced deadly outbreaks.
Earlier this month, the CDC reported 2,778 infections and 15 deaths
among staff employed in correctional and detention facilities. From
late January to late April, fully 36% of all reported infections at
correctional facilities were suffered by staff.
At least 6 employees of one warehouse in New York have died from
COVID-19. One-hundred and twenty nine New York City transit workers
have died of the virus.
As of last week, 1,424 Veterans Administration employees have been
diagnosed with COVID-19 and 31 have died.
Some 2,400 postal workers have tested positive and 60 have died
from COVID-related illnesses. United Parcel Service is facing an
outbreak of 36 cases at its facility in Tuscon.
But as we will discuss today, we actually don't really know the
toll to workers because this nation has no system for collecting data
on COVID-19 infections in the workplace. And employers are not
obligated to publicly report these infections. Some government agencies
refuse to make this information public due to employer concerns about
adverse publicity, leaving workers and the public unaware of what risks
they are facing.
We cannot lose sight of the fact that this is largely a tragedy
inflicted on our nation's essential workers. People who don't have a
choice on whether they have to go to work. Many of those on the
frontlines are low income workers and disproportionately people of
color who don't have the luxury of teleworking from home.
COVID-19 is largely a workplace disease and a community tragedy. In
Iowa, Nebraska and South Dakota, coronavirus cases linked to meat
workers represent 18, 20 and 29 percent of the states' total cases,
respectively, according to the Environmental Working Group. My home
state of North Carolina leads the nation with the number of meatpacking
plants facing an outbreak--with the state Department of Health and
Human Services reporting that at least 23 plants have outbreaks with
more than 1,300 worker infections.
Yet OSHA, the agency that this nation has tasked to protect
workers, has been largely invisible. It has failed to develop the
necessary tools it needs to combat this pandemic and it has failed to
fully use the tools it has; instead focusing principally on issuing
press releases and voluntary guidance.
This hearing will focus on why that is and the price that this
nation's workers are paying for OSHA's inaction.
Deep into this pandemic, OSHA has still not developed any
enforceable standards for employers to follow that can protect workers
from the airborne transmission of the novel coronavirus.
And OSHA's existing enforcement tools to combat this pandemic,
which include standards covering respirators and personal protective
equipment, are inadequate and unused.
While guidance issued by the Centers for Disease Control and
Prevention can be useful, it is not binding. Only OSHA can enforce safe
working conditions.
And although OSHA says it uses its enforcement authority to protect
workers, OSHA's own data shows that the majority of its inspections are
conducted only after workers have died. And OSHA has conducted
complaint inspections for less than one percent of the complaints
filed.
And while the Secretary of Labor says it does not need an Emergency
Temporary Standard, because OSHA already has the tools it needs to
enforce its guidelines through the General Duty Clause, the
embarrassing truth is that OSHA has not issued a single citation under
the General Duty Clause to enforce that Guidance. Not one!
This worker safety crisis was clearly foreseeable. And OSHA was
warned. It was clear after the H1N1 Swine Flu pandemic in 2009 that an
infectious disease standard was needed that requires employers to
assess the infectious disease risks in their workplaces and mitigate
the hazards. Such a standard was well along the way at the beginning of
the Trump Administration, but in February 2017, that draft standard was
mothballed and relegated to the ``long term'' regulatory agenda where
it languishes today.
In January, I joined Chairman Bobby Scott in calling on OSHA to put
the infectious disease standard back on the active agenda. In that
letter, we also urged OSHA to issue a compliance directive for the
health care sector, and to issue an Emergency Temporary Standard if the
situation deteriorated. At the time of our request, there were just 5
confirmed COVID-19 infections in the United States.
Hearing nothing back, on March 5th we wrote OSHA again describing
how hundreds of health care workers had been exposed and stated the
obvious: that OSHA urgently needed to issue an Emergency Temporary
Standard
(ETS). In mid- March, OSHA rejected an ETS on the grounds that
``the health care industry fully understands the gravity of the
situation and is taking the appropriate steps to protect its workers.''
In April, with more than 720,000 infections nationwide, OSHA
finally issued enforcement guidance, but only covering the health care
sector.
In mid-May, as workers continue to face risk of infection, illness,
and death, the agency is still refusing to issue an Emergency Temporary
Standard to protect workers from exposure to the coronavirus.
Here is what the OSHA Act states: OSHA ``shall provide . . . . for
an Emergency Temporary Standard'' if it determines ``that employees are
exposed to a grave danger . . . .'' from ``new hazards'', and ``that
such emergency standard is necessary to protect employees from such
danger.''
Circumstances like this pandemic are the exact reason this
authority exists, yet OSHA continues to sit on the sidelines.
My question to the Secretary of Labor is how, after tens of
thousands of workplace infections and hundreds of worker deaths, why is
OSHA missing in action?
OSHA's failure to take meaningful action has sent a clear message
to workers across the country that they are on their own.
On Friday, May 15, the House of Representatives passed the Heroes
Act (H.R. 6800) which included the COVID 19 Every Worker Protection Act
introduced by Chairman Scott, Representative Shalala and myself. That
bill directs OSHA to issue an Emergency Temporary Standard with seven
days to protect workers in hospitals, meatpacking plants, retail
stores, restaurants, offices, shipyards, and any other workplace where
a person may face risk from exposure to the novel coronavirus from the
public or from other workers. The Heroes Act would also prohibit
employers from retaliating against workers for sounding the alarm about
unsafe conditions.
As the states across the country begin to reopen, more workers will
be at risk of infection unless OSHA starts doing its job. And if the
reopening of workplaces drives up infections rates, states will be
forced to reinstate stay-at-home orders, which will do further damage
to our economy.
We simply cannot safely and effectively reopen our economy until we
secure the safety of our workers.
The only logical conclusion I can draw is that OSHA's inadequate
response to this pandemic has been informed more by stale politics
rather than modern science. The necessity to protect workers should not
be cramped by stale ideological notions about regulation, nor campaign
slogans about repealing two regulations for every new one that is
created. The house is on fire, and we cannot waste time arguing about
how to rewrite our building codes.
Today, we will explore and hopefully answer why there has been the
lack of political will in the face of this public health disaster. And
we will learn why no one seems to care enough to even track the number
of workers who are getting sick and dying.
Finally, before I end, I feel the need to respond to two items in
Ms Sweatt's written testimony.
First, we note that because of a lawsuit, Ms. Sweatt will refuse to
answer any questions about an Emergency Temporary Standard. I want to
note for the record that there is no legal basis for this refusal; it
is purely a political statement.
Second, I want to respond to Ms. Sweatt's testimony which implies
that criticism of OSHA's failure to issue a emergency standard or
enforce existing standards ``does a disservice . . . to the hardworking
men and women of OSHA.''
No one has more respect for the dedicated staff of OSHA and the
hard work they do every day than this Committee, as evidenced by our
advocacy for the agency's budget and opposition to the torrent of
rollbacks to worker safety protections. The failure to competently
address the life-threatening hazards that working Americans are facing
from COVID-19 is not the fault of OSHA professional staff, but rather
due to the unfortunate decisions of OSHA's political leadership.
I now yield to the Ranking Member, Mr. Byrne, for his opening
statement.
______
Mr. Byrne. Thank you, Madam Chairwoman, for yielding.
Let me state for the record that the Chairwoman is here
physically present in this room. The Chairman of the Full
Committee, Mr. Scott, is physically present in the room. The
Ranking Republican Member on the Committee is physically
present here in the room. I am physically present here in the
room. In fact, there are 15 Members of this Committee
physically present in the room, nine Republicans, six
Democrats. It is a safe environment, a simple environment. As
you can tell, we are socially distanced.
Not much has changed since the Democrats decided at the
11th hour to unilaterally call off last week's hearing. OSHA
and NIOSH officials, my Republican colleagues and I were ready
then to talk about the important work these agencies are doing
to combat COVID-19, and we are here again to do so today. It is
indeed unfortunate the Democrats decided to play politics on an
issue that they assert is a top priority.
The COVID-19 pandemic has been an extraordinary time for
all Americans. Many of us are coming out of mandatory stay-at-
home orders after 2 months or more. People are returning to
work in a new environment with a disease that is still
relatively new and about which we still have much to learn.
We know the disease affects different people in different
ways. Many people who test positive have no or mild symptoms,
but a small percentage get very ill, and some of them,
unfortunately, pass away. The two groups most likely to become
very ill are those over 65, who make up 80 percent of all
deaths in this country, and those with underlying health
conditions as listed by the CDC.
The disease also presents varied levels of risk for workers
in different types of jobs. For example, an office worker who
doesn't interact with the public faces much lower risk than a
nurse in an ICU ward.
I say all of this to make a point about the inherent
difficulty in coming up with a reliable, single standard for
workplace safety, whether it is for infectious disease in
general or COVID-19 specifically.
How did OSHA handle complex safety and health issues in the
past? From SARS in the 2000s, during the Bush Administration,
to MERS, H1N1 influenza, and Ebola during the Obama
Administration, OSHA did not issue a new standard, but instead
enforced existing standards and issued guidance, which, in
turn, could be the basis for action against an employer under
the general duty clause of the OSHA statute.
Let me say that again. During the Obama Administration,
under three separate diseases, OSHA did not issue a standard.
They issued guidelines and relied upon those guidelines for
enforcing the general duty clause.
When the Acting Assistant Secretary for OSHA during H1N1,
which the Chairwoman referred to, during that pandemic, a man
named Jordan Barab, when he testified before this Committee in
May of 2009, he said OSHA had created guidance, guidance,
quote, to help employers determine the most appropriate work
practices and precautions to limit the impact of the pandemic.
He went on to say: ``Because safety risks are greater in
certain workplaces, OSHA is focusing its direct efforts on
educating employers and employees in the high-risk exposure
categories.''
At that time, he said OSHA issued an occupational risk
pyramid to categorize workers' risk, which demonstrated that
only a small portion of employees were at the highest exposure
risk level. Mr. Barab specifically referenced standards already
in place for personal protective equipment and respirators.
He said that OSHA would use the general duty clause, quote,
to ensure that employers follow the practices that public
health experts agree are necessary to protect workers' health.
Finally, he quoted President Obama's assessment for the
situation as being, quote, one for cause for deep concern but
not panic.
What has OSHA done with COVID-19? Just like the Obama
Administration, it has issued detailed guidelines, placed an
enforcement emphasis on high-risk workplaces, used an
occupational risk pyramid categorizing workers' risks, and
reminded employers of OSHA's existing standards on PPE,
respirators, sanitation and others, as well as their
obligations under the OSHA Act's general duty clause to provide
employers with a safe and healthy workplace.
In addition, OSHA and the CDC have issued industry-specific
guidance for healthcare, nursing home and long-term care,
retail pharmacy, car service, package delivery, retail,
construction, manufacturing, restaurant, and dental workplaces.
And is still working on it.
There are two problems with requiring a standard. First, we
are still learning about this disease. And we just don't know
enough information to meet the level necessary and appropriate
to construct an adequate Emergency Temporary Standard and a
permanent Federal regulation.
That is why the various guidance documents already issued
are so useful. They can be used -- they can be issued
relatively quickly and modified as we learn more from the CDC
and other public health officials and from the workplaces
themselves. A standard, at this point, would be an unproductive
burden for businesses already struggling to reopen, potentially
exposing them to unnecessary liability risk during an already
challenging time and would do little to advance workplace
safety.
Second, setting a standard just takes too long. On average,
it takes OSHA 7 years to compile all the data necessary and
meet all the regulatory requirements for issuing a standard.
I know Democrats want an emergency technical -- temporary
standard, or ETS, which according to their bill, must be done
in 7 days. The last time OSHA issued an ETS was in 1983, and
that one was overturned because OSHA could not meet the
statutory threshold requirements for issuance. Indeed, OSHA has
lost more ETS cases in Federal courts than it has won for the
same reason.
I know the Speaker included a provision requiring a
standard in the bill passed by the House two weeks ago, a bill
she created in her office, without any consultation with the
White House or the Senate, and on which we never had a hearing
or markup in this Committee, the Committee of jurisdiction. No
regular order and no effort to obtain bipartisan consensus.
That is no way to operate the House with a challenge of this
magnitude, posed by the pandemic and our response to the
pandemic. No wonder that bill is dead on arrival in the Senate.
I also know the AFL-CIO filed a lawsuit last week to force
OSHA to issue a standard. They filed a lawsuit. Expensive and
time-consuming litigation against a Federal agency responsible
for protecting our Nation's workers in the midst of a pandemic
is unhelpful and very unlikely to succeed.
And, Madam Chairwoman, I take exception to your remarks
about the witness' ability to talk about that lawsuit and
matters involved in that lawsuit. No lawyer is going to let
their client talk about something like that with pending
litigation. It is a matter of every lawyer that has a client in
litigation like that is going to ask them to be careful about
that. And to expect them not to follow their lawyer's advice is
totally unfair to them.
I must say that when I started preparing for this hearing
with my staff two weeks ago, I was impressed, very impressed,
with the diligence and speed with which OSHA has fashioned its
response. Remember, we didn't know about this disease five
months ago. Their experience with past pandemics surely helped,
and I am glad they both followed and built upon this
experience.
I have talked with hundreds of businesses trying to decide
whether and how to reopen, and that is probably true for every
Member in this room. Those conversations always include a real
concern for the health of their employees. They have consulted
CDC. They have consulted local and State public health
officials and their industry organizations, and yes, they are
closely following this OSHA guidance, which they are truly
grateful for. They want to provide their employees a safe
workplace, and OSHA is helping them achieve that. Isn't that
what the OSHA statute's purpose is? Helping employers and
employees keep their workplaces safe and healthy?
I am looking forward to the testimony today. And I thank
the witnesses for appearing in the midst of what I know is a
very busy time for them. Let's all work together to protect the
most important part of the American economy, the working men
and women who make this country so very prosperous, including
the healthcare workers, like my sister-in-law, Cynthia Dukes,
who is an ICU nurse. I want her to be safe and healthy as she
goes about her extremely important work, even as we sit here,
taking care of the sickest of us. She and her colleagues
deserve nothing less, and they are best served by us when we
work together for them, and not for special interests, and we
stop the wasteful litigation and the partisan legislative
games.
America will get through this. We can protect our people
who are most vulnerable to this disease and reopen the American
economy safely as we start on another road to recovery and
prosperity for all. President Obama was right, there is cause
for great concern but not panic. And if OSHA's response was the
best way to go for SARS, MERS, H1N1, and Ebola, why is it not
best for COVID-19?
Thank you, and I yield back.
[The statement of Mr. Byrne follows:]
Prepared Statement of Hon. Bradley Byrne, Ranking Member, Subcommittee
on Workforce Protections
``Let me state for the record that I, Ranking Member Foxx, and
other Members are here in the Committee room in Washington, socially
distanced. It is a relatively simple and safe environment here.
In fact, not much has changed since the Democrats decided at the
eleventh hour to unilaterally call off last week's hearing. OSHA and
NIOSH officials, my Republican colleagues, and I were ready then to
talk about the important work these agencies are doing to combat COVID-
19 and we are here again today to do so. It's unfortunate the Democrats
decided to play politics on an issue they assert is a top priority.
The COVID-19 pandemic has been an extraordinary time for all
Americans. Many of us are coming out of mandatory stay- at- home orders
after two months. People are returning to work in a new environment
with a disease that is still relatively new and about which we still
have much to learn.
We know the disease affects different people in different ways.
Many people who test positive have no or mild symptoms, but a small
percentage get very ill, and some of them, unfortunately, pass away.
The two groups most likely to become very ill are those over 65, who
make up 80% of all deaths, and those with underlying health conditions
as listed by the CDC.
The disease also presents varying levels of risk for workers in
different types of jobs. For example, an office worker who doesn't
interact with the public faces much lower risk than a nurse in an ICU
ward.
I say all of this to make a point about the inherent difficulty in
coming up with a reliable single standard for workplace safety, whether
it's for infectious diseases in general or COVID-19 specifically.
How did OSHA handle complex safety and health issues in the recent
past? From SARS in the 2000s during the Bush Administration to MERS,
H1N1 influenza, and Ebola during the Obama Administration, OSHA didn't
issue a new standard but, instead, enforced existing standards and
issued guidance, which in turn could be the basis for action against an
employer under the General Duty Clause of the OSHA statute.
When the Acting Assistant Secretary for OSHA during the H1N1 flu
pandemic, Jordan Barab, testified before this Committee in May of 2009,
he said OSHA had created guidance 'to help employers determine the most
appropriate work practices and precautions to limit the impact' of the
pandemic. And 'because safety risks are greater in certain workplaces,
OSHA is focusing its direct efforts on educating employers and
employees in the higher-risk exposure categories.' OSHA issued an
'Occupational Risk Pyramid' to categorize workers' risk which
demonstrated that only a small portion of employees were at the highest
exposure-risk level. Mr. Barab specifically referenced standards
already in place for personal protective equipment and respirators. He
said that OSHA would use the General Duty Clause to 'ensure that
employers follow the practices that public health experts agree are
necessary to protect workers' health.' Finally, he quoted President
Obama's assessment of the situation as being one of 'Cause for deep
concern, but not panic.'
What has OSHA done with COVID-19? Just like the Obama
Administration, it has issued detailed guidelines; placed an
enforcement emphasis on higher risk workplaces; used an 'Occupational
Risk Pyramid' categorizing workers' risk; and reminded employers of
OSHA's existing standards on PPE, respirators, sanitation, and others,
as well as their obligations under the OSH Act's General Duty Clause to
provide employers with a safe and healthful workplace. In addition,
OSHA and the CDC have issued industry-specific guidance for health
care, nursing home and long-term care, retail pharmacy, car service,
package delivery, retail, construction, manufacturing, restaurant, and
dental workplaces.
There are two problems with requiring a standard.
First, we are still learning about this disease and we just don't
know enough information to meet the level necessary and appropriate to
construct an adequate Emergency Temporary Standard and a permanent
federal regulation. That's why the various guidance documents already
issued are so useful. They can be issued relatively quickly and
modified as we learn more from the CDC and other public health
officials, and from the workplaces themselves. A standard at this point
would be an unproductive burden for businesses already struggling to
reopen, potentially exposing them to unnecessary liability risks during
an already challenging time, and would do little to advance workplace
safety
Second, setting a standard just takes too long. On average, it
takes OSHA on average seven years to compile all the data necessary and
meet all the regulatory requirements for issuing a standard. I know
Democrats want an Emergency Temporary Standard, or ETS, which,
according to their bill, must be done in seven days. The last time OSHA
issued an ETS was in 1983 and that one was overturned because OSHA
couldn't meet the statutory threshold requirements for issuance.
Indeed, OSHA has lost more ETS cases in federal courts than its won for
this same reason.
I know the Speaker included a provision requiring a standard in the
bill passed by the House two weeks ago, a bill she created in her
office, without any consultation with the White House or the Senate and
on which we never had a hearing or markup in this committee, the
committee of jurisdiction. No regular order and no effort to obtain bi-
partisan consensus. That's no way to operate the House with a challenge
of this magnitude posed by the pandemic and our response to the
pandemic. No wonder that bill is DOA in the Senate.
I also know the AFL-CIO filed a lawsuit last week to force OSHA to
issue a standard. Expensive and time-consuming litigation against the
federal agency responsible for protecting our nation's workers in the
midst of a pandemic is unhelpful and very unlikely to succeed.
I must say that when I started preparing for this hearing with my
staff two weeks or so ago, I was impressed with the diligence and speed
with which OSHA has fashioned its response. Their experience with past
pandemics surely helped, and I'm glad they both followed and built upon
this past experience.
I've talked with hundreds of businesses trying to decide whether
and how to reopen. Those conversations always include a real concern
for the health of their employees. They've consulted CDC, local and
state public health officials, and their industry organizations. And,
yes, they are closely following this OSHA guidance, which they are
truly grateful for. They want to provide their employees a safe
workplace, and OSHA is helping them achieve that. Isn't that what the
OSHA's statute's purpose is, helping employers and employees keep their
workplaces safe and healthy?
I'm looking forward to the testimony today and I thank the
witnesses for appearing in the midst of what I know is a very busy time
for them. Let's all work together to protect the most important part of
the American economy, the working men and women who make this country
so very prosperous, including the health care workers, like my sister-
in-law, Cynthia Dukes, who is an ICU nurse. I want her to be safe and
healthy as she goes about her extremely important work, even as we sit
here, taking care of the sickest of us. She and her colleagues deserve
nothing less. And they are best served by us when we work together, for
them and not for special interests, and when we stop the wasteful
litigation and the partisan legislative games.
America will get through this. We can protect our people who are
most vulnerable to this disease and reopen the American economy safely
as we start on another road to recovery and prosperity for all.
President Obama was right: there is cause for great concern but not
panic. And if OSHA's response was the best way to go for SARS, MERS,
H1N1, and Ebola, why is it not best for COVID-19?''
______
Chairwoman Adams. I want to thank the Ranking Member, but I
just want to just respond for a moment, Mr. Byrne. Obama
started work on a permanent airborne disease standard, and
Trump put it back on the back burner, and still after a hundred
thousand deaths, it is still pending, so --
Votes are going to be called in 5 minutes, but let me
introduce the witnesses.
Any other Members who wish to insert written statements
into the record may do so by submitting them to the Committee
Clerk electronically in Microsoft Word by 5 p.m. on June 10,
2020.
Let me introduce the two witnesses before we will have to
take a break.
Our first witness will be Ms. Loren Sweatt. Ms. Sweatt is
the Principal Deputy Assistant Secretary for the Occupational
Safety and Health Administration. She joined OSHA on July 24,
2017, coming from this Committee, where she was Senior Policy
Adviser at the Committee on Education and Workforce for 15
years. In that role, Ms. Sweatt handled workplace safety issues
before the Committee, including OSHA and the Mine Safety and
Health Administration.
Our next witness will be Mr. John Howard -- or Dr. John
Howard, excuse me. Dr. Howard is the Director of the National
Institute for Occupational Safety and Health. He has held that
position since 2009. Dr. Howard previously served as Director
of the Institute from 2002 to 2008. Prior to coming to NIOSH,
Dr. Howard was Chief of the Division of Occupational Safety and
Health for the California Department of Industrial Relations,
Labor, and Workforce Development.
We are going to -- I am going to -- do we adjourn?
Okay. We are going to proceed with the hearing and with the
witness testimony.
So we appreciate the witnesses for participating today, and
we look forward to your testimony. But let me remind the
witnesses that we have -- we have read your witness statements,
and they will appear in full in the hearing record.
Pursuant to Committee Rule 7(d) and Committee practice,
each of you is asked to limit your oral presentation to 5-
minute summary of your written statement. And let me remind the
witnesses that pursuant to Title 18 of the U.S. Code Section
1001, it is illegal to knowingly and willfully falsify any
statement, representation, written document, or material fact
presented to Congress, or otherwise conceal or cover up a
material fact.
Before you begin your testimony, please remember to press
the button on the microphone in front of you so that it will,
in turn -- the Members can hear you. And as you begin to speak,
the light in front of you will turn green. After 4 minutes, the
light will turn yellow to signal that you have 1 minute
remaining. When the light turns red, your 5 minutes have
expired, and we ask that you please wrap it up.
We will let both witnesses make their presentations before
we move to Member questions. When answering a question, please
remember to once again turn your microphone on.
Ms. Sweatt, we are going to first recognize you.
STATEMENT OF LOREN SWEATT, PRINCIPAL DEPUTY ASSISTANT
SECRETARY, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
WASHINGTON, D.C.
Ms. Sweatt. I am sorry. Thank you for the opportunity to
highlight the Occupational Safety and Health Administration's
important work of protecting our Nation's workers.
I am proud of the work this agency has done during the
Trump Administration, but I am particularly proud of the work
it is performing right now as it responds to a worldwide health
crisis.
The work of the agency continues uninterrupted even as we
respond to this pandemic. Between February 1 and May 21, OSHA
received over 5,000 non-COVID-19 complaints and conducted 5,009
investigations based on these complaints and 969 inspections.
During this time, OSHA has also received over 2,300 non-COVID-
19 whistleblower complaints, which are being evaluated along
with the COVID-19 whistleblower complaints.
I am so proud of the dedication to OSHA's mission of our
hardworking compliance safety and health officers and all of
the agency's personnel. Our CSHOs are initiating thousands of
investigations of complaints. Our compliance assistance staff
are working with employers across the country to help ensure
safe and healthful working conditions for the Nation's workers.
Our training and education staff have moved quickly to
provide training to CSHOs, and before, during, and after the
pandemic, my goal is for OSHA's efforts to prevent workers from
ever becoming ill or injured because they are doing their job.
OSHA's efforts to address COVID-19 has been its top
priority since February. OSHA quickly pivoted to focus
intensely on giving employers and workers the guidance they
need to work safely in this rapidly changing situation. Where
appropriate, OSHA has also enforced safety and health
standards. Throughout this crisis, the incredible men and women
of OSHA have remained committed to carrying out their mission
to keep America's workers safe and healthy.
OSHA's initial response to the pandemic was to provide
extensive guidance, often in conjunction with the CDC. Guidance
has allowed the agency to be more nimble in response to the
ever-changing understanding of the virus.
OSHA continues to issue industry-specific alerts that
provide targeted guidance on practices and procedures that will
help workers' health and safety. To date, OSHA has issued
general industry guidance, and it has also issued guidance
documents to protect workers in numerous specific industries,
including meat-packing and processing, healthcare, nursing
homes, restaurants, dentistry, and manufacturing. OSHA has also
distilled its extensive guidance into a wide variety of useable
worker education segments available on OSHA's website.
While extensive guidance is important to the rapidly
changing dynamic of this pandemic as it continues, it is
important to recognize OSHA's existing standards serve as the
basis for its COVID-19 enforcement. Those standards include
rules regarding respiratory protection, personal protective
equipment, eye and face protection, sanitation, and hazard
communication.
In addition to those existing authorities, OSHA has also
the ability to take appropriate action against employers under
the OSH Act's general duty clause.
OSHA was recently sued by the AFL-CIO for an Emergency
Temporary Standard, and as we have discussed today, I cannot
comment further surrounding the ETS or litigation.
The flexibility and responsiveness allowed through guidance
is apparent in the two revised enforcement policies issued last
week by OSHA. As States are beginning to reopen their
economies, OSHA is acting to ensure employers are protecting
their employees.
First, OSHA is increasing in-person inspections at all
types of workplaces. Second, OSHA is clarifying its previous
enforcement policy for recording cases of coronavirus. Under
the new policy, OSHA will enforce recordkeeping requirements
for employee coronavirus illnesses for all employers.
But to repeat, OSHA will not use guidance as a substitute
for enforcement. Rather, the agency has the tools and intent to
pursue both avenues. Where there are safety issues, OSHA
remains, as always, shoulder to shoulder with America's
workers.
OSHA is charged with protecting the rights of
whistleblowers under 23 statutes. As the Secretary of Labor has
made clear from the White House podium, multiple national
interviews, and additional conversations with stakeholders,
retaliation against workers is unacceptable.
In this pandemic, OSHA inspectors are initiating thousands
of investigations. This is resulting in employers receiving up-
to-date information about how to better protect their workers.
During this same time, OSHA inspectors continue to respond to
non-COVID-19 worker fatalities and complaints.
Through the tireless efforts of the entire agency, OSHA's
continuous outreach and communication to workers and employers
and its issuance of important guidance, OSHA is on the job
protecting America's workers.
I am happy to answer any questions you may have.
[The statement of Ms. Sweatt follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you, Ms. Sweatt.
Dr. Howard, you have 5 minutes, sir.
STATEMENT OF JOHN HOWARD, MD, MPH, JD, LLM, MBA, DIRECTOR,
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH,
WASHINGTON, D.C.
Dr. Howard. Good morning, Chairwoman Adams and Ranking
Member Byrne, Chairman Scott and Ranking Member Foxx. My name
is John Howard, and I am the Director of the National Institute
for Occupational Safety and Health, which is part of the
Centers for Disease Control and Prevention in the U.S.
Department of Health and Human Services. I am pleased to
provide the Subcommittee information about the COVID-19
response activities undertaken by NIOSH over the past few
months.
To date, just over 1.6 million cases of COVID-19 have been
reported to CDC. Many of these cases are in working-age adults.
For example, as of today, May 28, there have been 62,690 cases
of COVID-19 among healthcare workers, with 294 deaths. However,
the total number of healthcare worker cases is likely to be an
underestimate due to data collection challenges arising from
the pandemic.
Currently, CDC and NIOSH are actively working to address
the issue of capturing occupational data as it relates to
COVID-19 cases.
A new case report form released on May 5 added questions
about workplace exposures for healthcare workers and workers in
other critical infrastructure industries. States have been
asked to start using this new form by May 15.
Activities by NIOSH as a part of CDC's response to COVID-19
fall into three main categories. First, respiratory protective
devices. Through NIOSH's National Personal Protective
Technology Laboratory, NIOSH is responsible for establishing
criteria, testing, and certifying respiratory protective
devices, including filtering facepiece respirators. The most
common type is the N95.
During the global supply shortage caused by the pandemic,
NIOSH and CDC have taken steps to increase the supply of
available certified respirators by, one, supporting existing
NIOSH respirator approval holders to increase their ongoing
production; two, quickly evaluating new domestic respirator
applications for approval; three, providing up-to-date
guidance, especially with regard to respirators made by non-U.S
manufacturers; and four, tripling respirator approval
decisions.
To expand the range of respirators available to healthcare
workers, NIOSH works with FDA on its emergency-use
authorizations which can significantly expand the inventory of
respirators available for use in healthcare settings by, one,
permitting the use of powered air purifying respirators, or
PAPRs, elastomeric respirators, and other NIOSH-approved
filtering facepiece respirators besides the N95, that had not
been previously cleared by FDA for use in healthcare settings;
second, permitting the use of stockpiled respirators that had
exceeded their rated shelf life; three, permitting the use of
certain respirators from foreign countries approved under the
performance standards in those countries; and four, permitting
the reuse of certain decontaminated filtering facepiece
respirators.
Second, field survey support for State health departments.
NIOSH deployed staff to 34 States and 18 poultry, 11 beef, and
5 poultry processing workplaces, representing 15 separate
companies.
The number of cases of COVID-19 in meat processing is
significant. NIOSH has reviewed plant facilities, processes,
operations. CDC's epidemiologists and partners from State and
local health departments evaluated plant and community
infection control plans through various methodologies. A
typical site visit examines multiple features of the plant's
operations.
Third, guidance. NIOSH has, through the Emergency
Operations Center at CDC, worked with our partner agencies,
including OSHA, the Department of Agriculture, and the
Department of Transportation, to produce numerous guidance
documents and fact sheets for employers and workers in various
industries and occupations. For example, CDC and OSHA have
coauthored interim guidance for the meat and poultry packing
industry and interim guidance for manufacturing workers and
employers.
Thank you again for the opportunity to participate in
today's hearing. I look forward to answering your questions.
[The statement of Dr. Howard follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Adams. Thank you very much.
Mr. Scott. I think, are we going to go vote and then come
right back? Can we do that?
Chairwoman Adams. They have called for votes, so we are
going to go and vote in vote rotations until we get further
information. I am on that first rotation, so, Mr. Scott, will
you --
[Discussion held off the record.]
Mr. Scott. [Presiding.] We apologize. We were hoping to go
vote all at the same time, but apparently that is -- we don't
have permission to do that yet.
First question will be the gentleman from California, Mr.
Takano.
Mr. Takano. Thank you, Mr. Chairman.
And thank you, Chairwoman Adams, for organizing this
critical hearing on the need to protect workers from
coronavirus.
The role of the Occupational Safety and Health
Administration is to, quote, ensure safe and healthful working
conditions for working men and women by setting and enforcing
standards, end quote. During this current pandemic, where
nearly 1.5 million people have been infected with COVID-19 and
nearly 100,000 people in this country have died, OSHA has
completely abandoned its responsibilities and is not holding up
to its mission.
The general duty clause of the Occupational Safety and
Health Act requires employers to provide employees with, quote,
a workplace free from recognized hazards likely to cause death
or serious physical harm, end quote. And based on my review of
the nearly 5,000 COVID-19-related complaints filed by workers,
it is evident that many employers are not making good-faith
efforts to protect their workers.
Ms. Sweatt, is OSHA prepared to conduct mandatory onsite
inspections in response to worker complaints that allege
serious health violations, not just for those complaints that
result in a fatality?
Ms. Sweatt. Yes. OSHA is working proactively since the
beginning of February to address the COVID-19 hazard. We have,
as you said, over 5,000 complaints, and our inspectors are
investigating all of them. Where they are getting information
from employers that is not adequate, they are opening
investigations. And so, yes, the agency has been doing its job
since the beginning of this pandemic.
Mr. Takano. Do you have enough inspectors to be able to do
this in a timely manner?
Ms. Sweatt. I think folks know that we have been actively
trying to hire investigators since August of 2017. We are
appreciative of Congress providing us more funding so that we
can hire 50 this year. Until March of this year, we were in an
unprecedented competition with the private sector to find and
hire adequate workers. This is a highly skilled profession, and
we have been trying to get folks to come in and serve the
mission of the agency. It has been something that is a priority
of mine since I started in July of 2017. But it was very
challenging with record low unemployment numbers to get people
to come in with the skills that we need. So, yes, we are
pursuing more inspectors --
Mr. Takano. Ms. Sweatt, how many, if I may, excuse me, how
many workers do you need, and how many positions remain
unfilled?
Ms. Sweatt. Well, we have 50 that are funded by Congress
this year that we are trying to fill. Even in the midst of this
pandemic, we are actively recruiting folks to come and work for
us, and we are seeing results. So we will work as hard as we
can and as diligently as possible to hire those folks and get
them through our process and get more people to have more boots
on the ground.
Mr. Takano. Ms. Sweatt, as the lead agency, how will OSHA
work to enforce national policies for each agency that you work
with and make sure rules are applied and followed uniformly
from facility to facility?
Ms. Sweatt. Well, I think the question is about our
engagement with our Federal partners.
Mr. Takano. Yes.
Ms. Sweatt. And, you know, our folks are on about 10
Federal task forces related to COVID specifically. We are
engaged with NIOSH and the CDC to write these guidance
documents that you have seen. The most important that we have
issued lately is the meat-packing guidance. We issued
construction on Monday.
We are working on more as we identify industries that need
to understand what we are requiring, and we will continue to do
that to the best of our ability.
Mr. Takano. Ms. Sweatt, just recently -- I am looking at
the clock and I just --
Staff. Yeah. It was never --
Mr. Takano. Okay. All right.
You know, rather than enforcing OSHA's role, the Trump
Administration plan for opening up America again attempts to
shift workplace safety preparedness to the States by
highlighting the States' responsibility for the health and
safety of workers in critical industries. Ms. Sweatt, was OSHA
consulted in preparing this plan?
Ms. Sweatt. All of those plans go through clearance, and I
would say that they may be talking about the State and local
health authorities, but, you know, OSHA is in approximately 26
States, and then there is 22 States with State plans --
Mr. Takano. But specifically on the Trump Administration's
plan to open up America again, was OSHA consulted in preparing
this plan?
Ms. Sweatt. I do believe that OSHA participated in the
clearance plan, yes.
Mr. Takano. You don't know for sure?
Ms. Sweatt. I do believe that we did, yes.
Mr. Takano. Does this approach effectively sideline OSHA in
its role for protecting workers?
Ms. Sweatt. No, I do not believe it does.
Mr. Takano. Even though it highlights the States'
responsibilities? I mean, it does not deemphasize OSHA?
Ms. Sweatt. I do not think so.
Mr. Takano. Is this plan consistent with the OSHA Act?
Ms. Sweatt. As I said, Federal OSHA exists in specific
States, and then there are State plans, of which we provide
grant money to. So where we are in jurisdiction, we will be in
enforcement mode, and we will be doing our job. I do not
believe that plan changes our obligations.
Mr. Takano. Thank you. I yield back.
Mr. Scott. (Off mike.)
Ms. Sweatt. I can come work the clock.
Mr. Scott. The gentleman from Alabama.
Mr. Byrne. Thank you, Mr. Chairman.
First of all, let me thank you again, both of you, for
being here. I know you are very busy.
Ms. Sweatt, you heard me recite the testimony of one of
your predecessors during the Obama Administration, and so I
want to ask you a simple question. How is OSHA's COVID-19
response similar or different from the approach taken by the
Obama Administration during the H1N1 pandemic?
Ms. Sweatt. We have followed the H1N1 pandemic strategy
almost to the T. It has been very important for us to get the
message out. We started as early as January with the safety and
health topics page. We provided general guidance for all
industries so that they could plan to protect their workers.
And as the pandemic has spread, we have provided industry
guidance for very specific industries, and I think we are doing
what we are supposed to do -- enforcement, compliance
assistance, and training and education of everyone that will
come to us and work with us on our guidance. And I don't think
that we have diverted from what the plan was with H1N1.
Mr. Byrne. Can you elaborate on how OSHA has historically
responded to emerging workplace hazards and why the agency has
used compliance initiatives, coupled with enforcement of
existing standards, including the OSHA Act's general duty
clause, as effective measures to respond quickly during a
pandemic?
Ms. Sweatt. Thank you. I would like to say that we respond
to a lot of different issues and have since I started in July
of 2017, natural disasters, hurricanes. Typically, in those
situations we suspend enforcement. In this instance, we
proactively determined that we would stay in enforcement mode
and we would use all the enforcement tools available to us.
One of those is the investigation for complaints. As we
have noted, we have received over 5,000 complaints, and the
approach that we have taken -- and this gets us into the
employer almost immediately, puts them on notice that someone
has said there is a problem and that we are following up. It is
one of the fastest ways to achieve resolution in the situation
to get the worker on -- or the employer on notice and the
worker out of the hazard.
Mr. Byrne. Thank you.
Dr. Howard, what resources has NIOSH developed to educate
employers and workers on how best to keep workplaces safe, and
do you anticipate that NIOSH will continue to update this
information?
Dr. Howard. Well, let me take the second question. The
answer is definitely yes. Our guidance changes rapidly, and I
always tell people, don't print out CDC guidance from your
printer because it may be out of date the next time you go to
the website. This is a rapidly evolving situation. So our
guidance changes pretty much every week and sometimes every
day.
The first question, we do a lot of educational guidance
with regard to both these congregate working situations which
are at highest risk, such as a nursing home, a meat-packing
plant, situations in which congregate commerce occurs, where
you have a worker and a customer close together. So we are
doing a lot to educate the worker and the employer on these
situations.
Mr. Byrne. Good.
So, Ms. Sweatt, let me go back to you for a second. We are
beginning to see a lot of businesses reopen, which I want to
say I think is a very good thing. So how does OSHA plan to
engage with employers and workers, as Dr. Howard said, to
ensure successful workplace safety outcomes?
Ms. Sweatt. We are going to continue providing guidance,
and as folks look to reopen, we will be working -- or we are
actually working on reopening guidance so that when employers
are looking at what they are going to do to protect their
workers, we can explain how that intersects with our existing
standards and regulations and what they need to do in order to
be in compliance as they go forward.
But the existing guidance that we have, that we have worked
with NIOSH and others, really does provide a very productive
roadmap for what employers should be doing as they look to
reopen their businesses.
Mr. Byrne. And, Dr. Howard, I think you kind of alluded to
this earlier, let me go back to you about this, but CDC and all
the rest of us are learning about this disease, like,
literally, something new every day. So as you issue new
guidance, you are taking into account what CDC and other people
are telling you? But as you said earlier, it is happening so
rapidly, you don't even print it out. You just put it on -- you
know you are going to have to change it the next day. How
difficult does that make it for both of you to actually try to
come up with a, quote, standard as opposed to guidance?
Dr. Howard. I think it is very difficult. Guidance is, as
you mentioned, an easier pathway, based on the best
professional judgment and hopefully the best science that we
have. And it can be easily done, although the review process is
long and detailed, as it should be. But when we learn something
new, that guidance can be changed almost instantaneously.
In the case of the meat-packing guidance, which we and OSHA
put together, one of the big issues now is establishment level
testing. Well, that is not really something that we put in the
current edition of the guidance, but we are beginning to think
more seriously about how you do that, because as we know, many
meat-packing processing plants are doing that kind of testing.
So we are beginning to think about that. So in the next
iteration of our guidance, we may have more information about
testing.
Mr. Byrne. Thank you. And I yield back.
Mr. Scott. Thank you. The gentlelady from Georgia, Mrs.
McBath.
Mrs. McBath. Thank you, Mr. Chairman, and thank you for
convening this hearing this morning. And thank you to both of
our witnesses. We appreciate you being here.
Over the last 3 months, we have watched as the COVID-19
coronavirus has made its devastating impact on this Nation.
100,000 Americans have died from this disease. The magnitude of
loss is simply staggering. For those that we have lost and the
millions of Americans who have lost someone, we continue to
mourn.
In this time of crisis, we have seen time and time again
that everyday heroes simply live among us and from every part
of our communities. Frontline healthcare providers working
around the clock to treat our families, first responders,
grocery store workers, essential employees, and delivery
workers have all answered the call to ensure that all Americans
can have access to vital services and goods during this period.
We have seen outbreaks in meat-packing plants, COVID wards
filled with healthcare workers and essential employees, and yet
there is no infectious disease standard for these workers. My
colleagues and I are committed to strengthening protections for
these workers, and I was very pleased to join Chairman Scott
and other Committee Members as an original co-sponsor of the
COVID-19 Every Worker Protection Act.
This bill strengthens OSHA protections by creating an
Emergency Temporary Standard for frontline workers, while
considering the constraints that have been placed on employers
during this crisis. However, this legislation is not necessary
for OSHA to act.
Ms. Sweatt, my question is for you. As you know, the
following H1N1 pandemic, OSHA began work in earnest on
infectious disease standards. Yet 3-1/2 years into this
administration and 100,000 American deaths into this pandemic,
please explain why the OSHA infectious disease standard is
still languishing on the long-term regulatory agenda.
Ms. Sweatt. What I can explain is that OSHA has prioritized
the protection of healthcare workers. We did that very early
on, if you look at the guidance and the information that we
sent out. We are very concerned about access to respirators for
these individuals, and we issued no less than five enforcement
guidance documents to ensure that our frontline healthcare
workers were given the best access to respirators that they
could have. And I would note that it languished on the
regulatory agenda of the previous administration for 8 years.
Mrs. McBath. Now, if the permanent standard had been put
into effect, would it have provided OSHA with additional tools
to deal with the pandemic?
Ms. Sweatt. OSHA is using its existing tools to address the
concerns that are related to healthcare workers and all workers
with this pandemic.
Mrs. McBath. But does OSHA intend to resume work on this
standard, on the standards that you are talking about?
Ms. Sweatt. I think we are getting very close to this is in
litigation, and I really cannot comment further.
Mrs. McBath. All right. So then, basically, I see that you
are still moving forward full steam ahead with OSHA'S tree care
standard. Is that really a good way to be spending your time
during this unprecedented crisis?
Ms. Sweatt. Our folks were able to multitask, and we were
able to complete that standard. Tree care work is very
dangerous work, and it is an important standard for us to
address. That has been languishing on the regulatory agenda for
20 years.
Mrs. McBath. Well, it is apparent that you would have more
resources if you had not cut OSHA'S standards by 10 percent in
2017. So given the crisis, would you consider a significant
increase in OSHA's regulatory budget helpful to you?
Ms. Sweatt. I think that this Congress has increased our
budget, and we will use those dollars wisely.
Mrs. McBath. I will ask a question. When is your next plan
of action for that standard? And when do you expect to have a
proposed rule? Can you give us a date or a month or a time?
Ms. Sweatt. I am sorry, for which standard?
Mrs. McBath. For the proposed standards that you are
already using.
Ms. Sweatt. The regulatory agenda, it speaks for itself.
Mrs. McBath. Okay. Thank you. I have no further questions.
Chairwoman Adams. [Presiding.] Thank you very much.
I am going to yield now to the gentlelady from North
Carolina, Ranking Member of Education and Labor.
Dr. Foxx, you are recognized.
Ms. Foxx. Thank you, Madam Chairwoman. I want to thank our
witnesses for being here today.
Ms. Sweatt, it is very nice to see you again. Dr. Howard,
very nice to see you all again.
Ms. Sweatt, on March 5, 2020, 6 days before the World
Health Organization classified COVID-19 as a pandemic,
Committee Democrats sent a letter to Secretary of Labor Scalia
demanding that OSHA immediately issue an Emergency Temporary
Standard for COVID-19. Since March 5, a great deal has changed
in both the scientific understanding of COVID-19 and the
application of appropriate and effective safety protocols in
combating workplace exposure to the coronavirus.
Can you explain further the rationale behind the detail
workplace safety guidance OSHA has issued to date and whether
this approach has been effective?
Ms. Sweatt. I do believe that this approach has been
effective. We started with our general industry guidance. We
provided as much information as we had available. And we have
since brought on more industry-specific guidance. We have
manufacturing, construction, meat processing. It has been a way
for us to, as we learn more about the virus and spread, for us
to really dig into the specific places and put out better
guidance for employers.
And then we have also managed to take these guidance
documents and break them into usable pieces for workers. And we
have translated almost everything that we have into Spanish.
And some of our materials is in about 12 other languages.
Ms. Foxx. Thank you. Ms. Sweatt, Committee Democrats and
their union allies have been circulating an untruthful talking
point, which has been echoed in various media outlets,
including The Washington Post, that OSHA has been, quote,
``missing in action,'' end quote, when it comes to protecting
workers from COVID-19.
Do you believe the administration's critics and their media
allies undermine workplace safety when they misleadingly claim
that OSHA is neglecting its responsibilities, that employers
are willfully ignoring safety in their workplaces and that
workers have few, if any, protections under the law?
Ms. Sweatt. Dr. Foxx, thank you very much for highlighting
this. I felt so strongly about the accusations that I wrote a
letter to The Washington Post refuting those assertions, and
they printed it. I am happy to provide that for the record.
Ms. Foxx. I think it would be useful if we put that into
the record.
I want to add to that one of our colleagues earlier said
that the absence of the rules that the Democrats want means
that there is nobody out there protecting the health and safety
of workers.
It is an abysmal misunderstanding of how the private
workplace operates, and that is that every employer wants his
or her workers kept safe. They are their most valuable assets.
And we hear that accusation over and over and over on this
Committee. And, again, it is very clear that they have no
concept of what happens in the private working sector.
Dr. Howard, since the beginning of the COVID-19 pandemic,
NIOSH and the CDC have constantly updated their guidance as the
outbreak has developed and as more is learned about the
coronavirus. What process does NIOSH use to update or change
its recommendations? And what factors does the agency take into
account on considering updates to its guidance?
Dr. Howard. Well, thank you very much for that question.
You know, there is a lot of our guidance, both NIOSH guidance
as well as CDC guidance, coming from our emergency operations
center. In fact, if I printed it all out, there would be a
stack very high here. And the primary drivers for guidance are
stakeholder need, perceived issues related to the virus itself,
and what we are seeing as the situation evolves. So it is a
very responsive-type process to what is happening on the
ground.
So I would sum up by saying that it is probably the most
responsive guidance machinery that I have ever seen at CDC.
Ms. Foxx. Well, thank you very much. And thank you for what
you are doing, what you and your colleagues are doing, because
we know you are focused on the health and safety of American
workers.
And, Ms. Sweatt, I appreciate you emphasizing that in your
first comment. I have another question for you. On April 8,
OSHA issued a statement reminding employers that it is illegal
to retaliate against workers because they report unsafe and
unhealthful working conditions during the coronavirus pandemic.
What protections do workers have under the OSHA Act against
unlawful retaliation? And how is the agency responding to
whistleblower complaints during the pandemic?
Ms. Sweatt. Thank you, Dr. Foxx. This is very important
work at the agency. And we have 23 whistleblower statutes that
we are in charge of. What we see with the COVID-19 is mostly
11(c), which is in the Occupational Safety and Health Act.
What I would like to say is that the agency and its
whistleblower investigators have already achieved reinstatement
of workers, they have seen letters of reprimand removed. Just
based on a phone call as we initiate the investigation -- and
in fact we have reports of businesses understanding and
changing their structure so that they are not retaliating and
that they are encouraging the reporting of safety and health
concerns.
Ms. Foxx. Thank you very much.
Ms. Sweatt. Thank you, Dr. Foxx.
Chairwoman Adams. Thank you very much, Dr. Foxx.
I want to recognize now Ms. Jayapal.
Ms. Jayapal, unmute.
Ms. Jayapal. Thank you very much, Madam Chair. I hope you
can hear me okay, and I very much appreciate this hearing. I
think this is a very important hearing, and I appreciate the
witnesses.
We are in an unprecedented time. We have lost over 100,000
American lives. That is almost more than we lost during the
Vietnam -- during World War I, and it is more than all of the
worst combined since World War II. So I think what we are
talking about is something extremely unprecedented that
requires our complete attention and devotion.
What happens when an agency fails the people it is supposed
to protect? People suffer and people die. People like Tyson
Fresh Meats beef-packaging worker, Guadalupe Olivera, who loved
to travel to national parks with his wife; Amazon warehouse
worker, Harry Sentoso, who died on his 27th wedding
anniversary; 28-year-old mental health counselor, James
Simpson, whose own experiences in foster care led him to work
as a counselor for troubled teens; and transit worker and
father of three, Scott Ryan, who coached his kids in baseball
and wrestling. These workers lost their lives to COVID-19 after
faithfully serving their communities during this pandemic. The
loss of these workers' lives is an incredible tragedy and a
preventable one.
OSHA is a division of the U.S. Department of Labor and is
charged with that important responsibility of protecting
workers. And I am glad to have a representative of OSHA here
today to better understand what you have been doing to protect
workers during this pandemic.
So, Ms. Sweatt, as the Principal Deputy Assistant Secretary
of OSHA, how many workers in the United States have contracted
COVID-19 in the workplace?
Ms. Sweatt. We have -- we have reports of worker injury
related to COVID-19. And what we do instead have -- and better
statistics -- are the fact that we have 5,000 COVID complaints
right now. And our agency is working expediously --
expeditiously, excuse me, to close those complaints and figure
out how to provide employers and workers the best information
available to protect themselves.
Ms. Jayapal. So, Ms. Sweatt, are you saying that OSHA,
which is the agency charged with protecting workers, is not
tracking COVID-19 infections in the workplace? I mean, the
U.K., for example, has been carefully tracking COVID-19-related
deaths by occupation. Are you not tracking this? Are you
incapable of tracking COVID-19 infections in the workplace
separate from the complaints?
Ms. Sweatt. I would -- I could go into a description of
recordkeeping and the employer's responsibility under
recordkeeping, but I think Dr. Howard might be the best person
to talk about the way that COVID-19 is tracked.
Dr. Howard. Thank you, Loren.
Yes, at CDC, as I mentioned in my testimony, we have been
getting better at tracking occupation and industry for COVID-19
cases. We have a new case report form that we are hoping that
the States will start using, we asked them to start using it on
the 15th of May, in which there are specific fields that can be
filled out that delineate what the occupation and industry of
that worker is.
We have done more in the area of surveillance for
healthcare worker occupation, and we are beginning to do that
for meat, poultry, and chicken processing workers also.
We have received funding from the Congress recently to
modernize data collection at CDC for these types of things. And
I am happy to go into more detail on that.
Ms. Jayapal. Thank you, Mr. Howard. I guess, you know, what
I would say is May 15 is pretty late for beginning to track
deaths and occupational deaths and cases.
Let me go back to Ms. Sweatt. Isn't it true that OSHA
revised its previous enforcement policy for recording cases of
coronavirus stating that under OSHA's recordkeeping
requirements, coronavirus is a recordable illness and employers
are responsible for recording cases of coronavirus? And, also,
isn't it true that OSHA only revised this data collection
policy on incidents of COVID-19 in the workplace on May 19,
more than 2 months after President Trump declared a state of
emergency?
Ms. Sweatt. So our first recordkeeping guidance or
enforcement document really wanted to have folks -- sorry for
the feedback -- focus on healthcare workers and for other
employers to look at hygiene practices. And so there was never
a recission, if you will, of a requirement to put recordkeeping
and COVID-related recordkeeping on their logs.
As America looks to reopen, we issued a new guidance
document that reemphasizes the employer's obligation to examine
COVID-19 work-relatedness and put that on their OSHA logs.
Chairwoman Adams. Thank you very much. Your time is up.
Thank you.
Ms. Jayapal. Thank you, Madam Chair. I yield back.
Chairwoman Adams. Thank you, Ms. Jayapal.
Let me now recognize the gentleman from North Carolina, Mr.
Walker.
Mr. Walker. Thank you, Madam Chair.
There has been a lot of discussion today from my colleagues
across the aisle pointing to an Emergency Temporary Standard as
being the only solution to guarantee workplace protections,
which completely overlooks the significant burden that would be
placed on small businesses that are already struggling, as most
of the country can see.
Small businesses in my district and across America have
been shattered due to the extended closures because of COVID-
19. I speak to small businesses literally every day who are
hanging or trying to hang in there to make tough decisions just
to keep their doors open. Imposing restrictive and duplicative
regulations would simply create additional barriers.
My question, Ms. Sweatt, if I could start with you, you
mention in your testimony that important work OSHA -- the
important work OSHA is doing in conjunction with the CDC to
issue industry-specific guidance to ensure worker safety. Just
yesterday when I was looking through the CDC website, I was
very encouraged to find detailed guidance for various
industries ranging from the retail to the airline industry.
Can you expand on why it is important to issue guidance
tailored to address the unique challenges of each industry as
opposed to a one-size-fits-all regulation covering all
industry?
Ms. Sweatt. Thank you, Congressman. Yes, I think it is very
important that we are able to take our general industry
guidance and then put it into the specific industries because
they are different. Construction can be outside and inside.
Manufacturing is mostly inside. So there is a variety of social
distancing issues that folks face.
And if I can comment briefly on the small business aspect
of your question. We have an onsite consultation program that
is available in all 50 States for small businesses to find a
person who can help them implement safety and health. And there
is a firewall between the OSHA enforcement side of the house.
And we have seen dramatic improvement and results from small
businesses utilizing our onsite consultation program.
Mr. Walker. And using the right title, Dr. Howard, if I
could ask you something. How often does the CDC and OSHA
receive new data on COVID-19, given the constantly changing
information? So hold that one question.
Let me say the second part is, what is the likelihood that
a regulation published as soon as tomorrow would be applicable
or relevant even 4 to 6 weeks from now?
Dr. Howard. Well, regarding the first question, you know,
as I said, this is a highly evolving situation, and we get new
data every day, not only from -- from the surveillance system
that we have in place and the ones that we are developing, but
also from a number of these industries that you are talking
about. I can't speak to the issue of regulation because CDC
does not do regulation.
Mr. Walker. Yeah, I want to swing that part of it back over
to Ms. Sweatt. Do you have anything to weigh in on the
question?
Ms. Sweatt. I just would agree with Dr. Howard that this is
rapidly evolving, and our folks are tracking this. They are
working 24/7 to provide the best information available.
Mr. Walker. Under the OSHA Act, once an ETS has been
issued, it must be replaced with a permanent standard. I
believe the timeline is within 6 months, using the customary
rulemaking process, which includes gathering stakeholder input
through public comment as well as hearings.
Ms. Sweatt, can you tell me what is the average amount of
time it takes to gather the necessary data and evidence to
publish a permanent standard?
Ms. Sweatt. According to a GAO report, OSHA takes 8 to 15
years to promulgate a new standard.
Mr. Walker. So would you say that an abbreviated rulemaking
process would require additional resources that could be used
to enforce existing guidelines to protect workers in order to
publish the rule within a 6-month timeframe?
Ms. Sweatt. I do think that we are working around the clock
to provide the information available, to make information
available and work towards protecting workers. And the other
piece of the rulemaking issue is we do find that it is very
important to get the most robust comments during our rulemaking
process.
Mr. Walker. Well, I think it is clear for all of us that
this is still a learning process. We want to be diligent. But I
would hope that we can all agree that OSHA and the CDC
resources are best spent on assisting American workers and
businesses, maintaining safe workplaces, rather than complying
with more bureaucratic demands.
With that, I yield back, Madam Chair.
Chairwoman Adams. Thank you, Mr. Walker.
Let me yield to the gentlelady from Pennsylvania, Ms. Wild.
Ms. Wild. Thank you, Madam Chair.
I would like to address some comments by my colleague
across the aisle, Mr. Byrne. The problem with silencing
witnesses on issues before this and other Committees is that we
seem to be mired in lawsuits brought by both sides of the
aisle, which could basically bring a halt to the very important
work done by these Committees.
Also, it is usually on advice of counsel that a witness is
instructed not to speak on a matter in litigation. This process
just allows an administration witness to pick and choose which
question she is willing to answer.
I would further like to comment on Mr. Byrne's remarks.
H1N1 killed fewer than 13,000 people in a year. COVID has
killed 100,000 in 4 months. To say that we should not have a
standard on the basis of H1N1 is also a false comparator.
With that, Dr. Howard, I have a question for you. A large
survey by the American Nurses Association indicates that where
facilities are reusing and decontaminating respirators, 54
percent of nurses believe it is unsafe to use a decontaminated
respirator N95 mask. A different survey by the National Nurses
United found that a quarter, 25 percent of respondents had to
reuse a so-called decontaminated respirator with confirmed
COVID-19 patients.
Is there solid evidence that decontaminated N95 respirator
masks are safe for healthcare workers to use? And are
decontaminated respirator masks as protective as new ones in
preventing infection?
Dr. Howard. Thank you for that fair question. I am aware of
those surveys and I understand that being a healthcare worker
myself. I think one of the issues that I would like to
emphasize at the get-go is that decontamination of an N95
respirator is not the first step in optimizing the use of
respirators for healthcare workers. It is literally the last
step. Every other type of respirator that we recommend in
healthcare, a PAPR, an elastomeric, et cetera, be used before
you decide to decontaminate your supply of N95s.
The science about decontamination is relatively new, and I
mean, very new. Manufacturers would take exception to the idea
of decontaminating an N95. What we recommend in terms of a
hospital that is planning to do this is to check with the
manufacturer. There are over 500 models of the N95, and each of
them are constructed a little differently, out of different
material, and they have different configurations. And it is
important that you identify with the manufacturer what do you
think is going to happen to this particular model that we are
using if we use vapors, hydrogen peroxide as a decontamination
method?
So, again, it is the last step in the hierarchy of
controls. PPE is always the last step, and amongst PPE
optimization procedures, it is literally the last step.
So take it very carefully, check with the manufacturer, and
check with the companies that are planning to decontaminate
your respirator. Have they done testing? One, does the
respirator survive the elastic bands, et cetera? And two, does
it kill the virus?
Ms. Wild. Thank you very much for that very complete
answer. You have answered my other questions that I was going
to ask you.
Ms. Sweatt, in your March 19 letter to Chairman Scott and
Representative Adams, you stated that an Emergency Temporary
Standard is not needed to protect healthcare workers or other
workers because the healthcare industry fully understands the
gravity of the situation and is taking the appropriate steps to
protect its workers. But we know that close to 62,000
healthcare workers have been infected with COVID-19, and 291
are dead as of last count.
I suspect that some hospitals are safer than others --
would you agree with me on that -- for workers?
Ms. Sweatt. I don't have an opinion one way or the other on
that.
Ms. Wild. Okay. You need to turn on your mike. But you
don't have an opinion one way or the other.
I know that we have two excellent healthcare institutions
in my Pennsylvania district that have taken worker safety very,
very seriously. On the other hand, we have another hospital
where employees have reached out to me with deep concerns about
their lack of PPE, the need to reuse surgical masks, paper
masks -- like the one I am wearing now -- over and over again.
Wouldn't an OSHA standard ensure that all of our healthcare
workers be kept safe while caring for the rest of us?
Ms. Sweatt. Well, I think if you are talking about
respirators, respiratory protection is already required. And so
it really becomes access to respirators.
And I think Dr. Howard could talk to some of the things
that they are doing related to respiratory protection. But what
we did early on was address the need to slow the burn rate. One
of the requirements in our respirator standard is an annual fit
test. We ensure that the fit test could occur while still
protecting workers and not destroying the respirator, which is
what the annual fit test would require otherwise.
And so we have been very concerned about that since day
one. And we have issued five guidance documents related to
respirators and their use in order to --
Ms. Wild. Excuse me. I would note that this is not
responsive to the question I asked. But with that, we are out
of time. Thank you.
Chairwoman Adams. Thank you. Thank you, Ms. Wild.
The gentleman from Virginia, Mr. Cline, you are recognized.
Mr. Cline. Thank you, Madam Chair. I thank the witnesses
for being here today.
Dr. Howard, you mentioned that at NIOSH, you have
significantly increased work hours in order to more than triple
the rate of respirator approval and denial decisions from 30 to
over 100 decisions per month. That is a significant increase.
And I appreciate the steps you are taking to expand your
workload during this time.
And, Ms. Sweatt, thank you for outlining how OSHA has been
responding to this virus and how frequently you are issuing
guidance. It is imperative during a time like this that OSHA is
able to remain responsive to the new discoveries through the
ability to revise guidance. It is clear that OSHA is working
hard to ensure employees are protected and that their guidance
is accessible through things like COVID-19 Tip of the Day and a
top 10 list of the actions employers and workers can take to
prevent COVID-19 infection.
I would ask, Ms. Sweatt, back on April 16, OSHA issued an
interim enforcement policy advising the agency's compliance,
safety, and health officers to evaluate an employer's good-
faith efforts to comply with safety and health standards during
the coronavirus pandemic. Can you elaborate on this policy,
including what kinds of factors OSHA will consider when
evaluating an employer's efforts and how employers should
document these efforts to comply?
Ms. Sweatt. Yes. Thank you very much for the question. And
that was really focused on a lot of the medical removal issues
and medical requirements and our existing standards. And a lot
of the people who are providing these services to workers were
no longer able to do that because of shelter-in-place issues.
And so spirometry, iodometry, those things were not going to be
available to the employer.
So as they look to reopen and they look to reschedule that,
if and when an OSHA inspector comes on site, they need to
explain what their plan is going forward to catch up on the
requirements that they have to protect their workers under
these standards.
Mr. Cline. As OSHA continues to revise its guidance based
on the newest information surrounding the coronavirus, how are
you working to inform businesses about these changes? And
moving forward, will OSHA consider industry-specific webinars
and offer opportunities for industry to ask direct questions?
Ms. Sweatt. Thank you very much for the question. We have
had a very active engagement with the unions and with
stakeholders. Our folks have done a variety of webinars. Our
compliance assistance individuals talk about almost 4,000
outreach activities that they have already done in the last 2
or 3 months. So we are actively engaged on all fronts of what
the agency does. And as we continue our work through the summer
and into the fall, our folks will be available, and we will
give the best information that we can.
I think one of the most important things that we can see
immediately is the dramatic increase to the number of people
who have visited our website to look at our guidance documents.
And so I think people are really, truly looking for answers.
Mr. Cline. Thank you.
Dr. Howard, the FDA issued an emergency use authorization
permitting the use of certain respirators certified under other
-- under other country's safety standards during the pandemic.
How is NIOSH working with the FDA to ensure the efficacy of
these respirators?
Dr. Howard. Thank you for that question. NIOSH works very
closely with the center at FDA that is responsible for
approving respirators. And we look with FDA to the standards
that particular manufacturer in that country are using. There
are some international standards that the EU has, for instance,
that many Chinese manufacturers use. So we work with FDA to
figure out which of the -- KN95s, they are called, coming from
China, for instance, meet the international standards. And then
they are included on the FDA's EUA.
Mr. Cline. And you mentioned this earlier, but you had the
opportunity to expand on it a little bit, beyond the issuance
of formal guidance, what additional resources has NIOSH created
for employers and workers to educate themselves about how to
prevent COVID-19 in the workplace?
Dr. Howard. Well, one of the things that we do, we do field
technical assistance visits with other centers at CDC. As I
mentioned, we have done 34 sites for beef, pork, and chicken
processing. And we have had excellent cooperation from the
plant operators and from the companies involved, even though
they are dealing with a very difficult situation.
As you know, a meat-processing plant is a very labor-
intensive workplace. And our recommendations are fundamental on
the issue of keeping people apart. That is extremely difficult
to do in a very labor-intensive operation like meat processing.
So those field investigations have been educational for us
and they have been educational also for the plant operator and
the companies.
Mr. Cline. Thank you.
Chairwoman Adams. Thank you very much.
I want to now recognize the gentlelady from Michigan.
Ms. Stevens, you are recognized.
Ms. Stevens. Thank you, Madam Chair. And I join my
colleagues in mourning the staggering loss of 100,000 Americans
to this wretched disease.
Ms. Sweatt, it is known that you oversee an agency with a
budget of $552 million, is that correct, and you oversee about
2,300 employees?
Ms. Sweatt. About 2,000, yes, ma'am.
Ms. Stevens. Okay, great. And are you currently working
from home?
Ms. Sweatt. No.
Ms. Stevens. You are going in every day. And how many -- I
guess, how many calls or meetings do you take a day? I have to
imagine it is quite a few.
Ms. Sweatt. Yes.
Ms. Stevens. And are most of them just meetings that have
been scheduled? Are they kind of reactive meetings? Are there
specific calls or, you know, outreach that you are doing that
is sort of unprompted?
Ms. Sweatt. I think my schedule is a combination of
activities related to -- we have a weekly meeting with all of
our senior staff and regional administrators. I meet weekly
with the directorate heads, as we are able to do that.
Ms. Stevens. Have you spoken to any essential workers? Have
you picked up the phone and called any or -- any employers that
are deemed essential during your time?
I know as a Member of Congress, that it was sort of
unprompted, but the first call I made when this pandemic was
declared was to our grocery stores, because I just thought,
holy smokes, you are now all of a sudden an essential service,
just almost overnight, how are you getting prepared. Have you
made any calls like that?
Ms. Sweatt. Yes. We have had calls with the unions. We have
had calls with stakeholders. We have performed webinars. I have
personally done these things myself, as has the staff. And, you
know, we continue our --
Ms. Stevens. You have an outreach office, right? You do,
you have an external affairs outreach office?
Ms. Sweatt. Well, we have a communications office, but we
also have a directorate of compliance and State programs. We
have had every other week --
Ms. Stevens. I would invite you anytime, ma'am, excuse me,
I would just invite you anytime to call the incredible grocers
in Michigan. We -- and nursing homes for that matter. I mean,
these hardworking individuals, every single day, I know they
would absolutely welcome a phone call from you at anytime.
And, Dr. Howard, thank you so much for your expertise and
your testimony today. I think last month, you might have seen I
introduced legislation to create an inner agency task force
that would bring together experts from across our government to
establish the scientifically-based guidance and recommendations
to our industries, right? And I heard you in one of the
previous responses that you -- you see the CDC changing almost
on a weekly basis.
How is that being communicated? And how are you with NIOSH
working on an inner agency basis to communicate these changing
science-based facts that are coming out of our coronavirus?
Dr. Howard. Well, our chief method of communication is
obviously through the CDC website on coronavirus. The
interaction with other Federal agencies are chiefly OSHA. The
Department of Agriculture, which we have had a much closer
relationship with lately in the Food Safety Inspection Service,
FSIS, as well as the Department of Transportation on airline,
the FAA, for instance.
So wherever the particular workplace or industry is, we
tend to reach out to that particular Federal agencies that are
often regulators, that are responsible in that area, the
stakeholders, the unions involved, and the employer
associations that service that industry.
Ms. Stevens. Great. Thank you, Dr. Howard.
And, Ms. Sweatt, Michigan has been pretty hard hit, and
particularly in our nursing homes, by this coronavirus
pandemic. I have heard complaints, as you were citing, from
businesses in my district that have found OSHA's guidance
sometimes confusing and vague.
So, for example, on page 10 -- and I read this report
several times on the guidance on preparing workplaces for
COVID-19. On page 10, you state that employers should provide a
face mask, if feasible and available, and ask a person to wear
it, if tolerated.
Why did OSHA issue guidance like this? And why not just
clearly state that masks can prevent the spread of COVID-19
when they are worn by workers?
Ms. Sweatt. I would point out that this was written in
early March, and so the issue involving the thought process
around face masks may have changed. But I do think that Dr.
Howard can give you the more scientific issues around the use
of face masks. Our concern here is often around respiratory
protection and the use of respirators.
Ms. Stevens. With that, I am out of time, but we thank our
Committee Chair for holding today's hearing. And we will follow
up on questions for the record.
Chairwoman Adams. Thank you, Ms. Stevens. Thank you, Ms.
Sweatt.
I am going to recognize myself now for my questions. I did
have to leave to go vote.
Ms. Sweatt, do you think that COVID-19 presents a grave
danger to workers?
Ms. Sweatt. I think that you are asking questions around
the Emergency Temporary Standard, and I can't answer that.
Chairwoman Adams. Well, I am not -- I am simply asking, is
COVID-19, in your opinion, does it present a grave danger to
workers? Yes or no?
Ms. Sweatt. I think that you are asking a question around
the Emergency Temporary Standard.
Chairwoman Adams. Oh, okay. You are not going to answer
that. All right.
Ms. Sweatt, at least 260 healthcare workers have already
died of COVID-19. Tens of thousands have been infected. Is
COVID-19 a grave danger to healthcare workers? Can you give me
a yes or no?
Ms. Sweatt. Madam Chair, what I will tell you is that OSHA
has prioritized healthcare workers and identified the issue of
respirators since the very beginning of this pandemic. As I
have said before, we issued five guidance documents in an
attempt to ensure that the burn rate on respirators did not
impact these workers.
Chairwoman Adams. Okay. But is it a grave danger, yes or
no? You can't say yes or no --
Ms. Sweatt. Madam Chair, I am not going to answer yes or no
questions.
Chairwoman Adams. All right. Let me move on. I don't want
to use up my time like that.
Dr. Howard, would you try to answer yes or no for me,
please? Do you think that COVID-19 presents a grave danger to
workers?
Dr. Howard. Yes, I do.
Chairwoman Adams. All right. Let me ask you, Dr. Howard.
Let's focus for a moment on the meat-packing workers. Is COVID-
19, in your opinion, a grave danger for meat-packing workers?
Dr. Howard. Yes, I do.
Chairwoman Adams. What about healthcare workers?
Dr. Howard. Yes, I do.
Chairwoman Adams. All right. Ms. Sweatt, can you answer me
honestly, if you were a worker in a meat-processing plant or a
nursing home, would you feel safer knowing that there was an
enforceable OSHA standard and the agency stood ready to issue
citations if safe working standards were being violated? Or
would you feel safer knowing only that your employer just had
to make a good-faith effort to comply with voluntary guidance?
Ms. Sweatt. What I can tell you is that the agency has
focused on the meat-processing industry. We have over 58
complaints or inspections active currently. And we have had
daily phone calls with FSIS and Dr. Howard's office to address
the concerns around meat packing and --
Chairwoman Adams. Okay, ma'am. I just want to know, if you
were a worker, would you feel safer knowing that there was an
enforceable standard, OSHA standard, and that the agency stood
prepared to issue citations if safe working standards were
being violated? Or would you feel safer knowing that the only
thing your employer had to do was just to make a good-faith
effort? Can you give me a yes or no?
Ms. Sweatt. I think that I am going to tell you that the
agency is doing everything it can related to this specific
industry to provide the best available information.
Chairwoman Adams. Yes, ma'am. Let me move on.
So, Ms. Sweatt, despite voluntary OSHA and CDC guidance and
the Presidential executive orders, conditions in meat plants
are getting worse. Now, you can say yes or no to that, but we
have got all of the data, comes on TV. Every day we see that
people are not only coming down with the disease but that they
are dying in these plants.
And over the past month, according to The Washington Post,
the number of infections tied to three of the country's biggest
meat processors -- Tyson Foods, Smithfield, and JBS -- have
gone from just over 3,000 to more than 11,000. Worker deaths
have tripled, surging from 17 to at least 63.
Now, given those numbers, would you say that your current
strategy to ensure the safety of meat-processing workers is
working?
Ms. Sweatt. I have to be very careful here because we do
have open inspections and investigations in meat-packing
facilities. So I think to answer your previous question at this
time --
Chairwoman Adams. No, I don't want you to answer the
previous question. Okay. That one, you can't give me a yes or
no?
Ms. Sweatt. The answer is we stand ready if we find
violations in our enforcement investigations --
Chairwoman Adams. Thank you, ma'am. I have got 50 seconds.
If the only way to accomplish social distancing in meat
processing is to slow down the production lines, will OSHA be
willing to order the plants to do so? Would you order the
plants to do so?
Ms. Sweatt. Line speed is not within the jurisdiction of
the agency, but what they can do is in our guidance.
Chairwoman Adams. Okay. That is fine. No, you wouldn't do
it. Okay.
And how many meat or poultry process plants has OSHA done a
physical inspection? How many physical inspections have you
done?
Ms. Sweatt. Within the last week, I believe it is 10.
Chairwoman Adams. How many of those have been closed with
no citations?
Ms. Sweatt. I believe most of those are still pending. We
have 6 months to complete our inspection.
Chairwoman Adams. Okay. Dr. Howard, let me ask you. You
said that -- your testimony discussed the inspections of 34
meat-packing facilities in 12 states. Given the difficulty of
redesigning meat-packing facilities, would it be far more
effective to keep the virus out of the plant by requiring
regular testing of workers for COVID-19?
Dr. Howard. Well, this is -- testing is a complex issue,
and right now, CDC doesn't have the establishment-wide guidance
to give an employer who is interested in doing testing.
Now, we are thinking about that. We have a lot of
information that we are putting together, and we may be coming
out with more guidance on that issue. But right now, we don't
have enough information to recommend establishment-wide. Now,
those are asymptomatic workers --
Chairwoman Adams. My time is up, sir. I apologize. My time
is up. I am going to have to now yield. Thank you, sir.
Mr. Guthrie of Kentucky, you are recognized, sir.
Mr. Guthrie. Thank you. I thank the Chair for the
recognition. I appreciate it. Thanks again for being here
today.
And my colleague from Michigan, Ms. Stevens, kind of talked
about masks, and you said that was early in March. Things have
changed. And I am on Energy and Commerce, Health, so we are --
and O&I, so we are following this, the information.
So businesses out there are trying to make -- they want
their workers to be healthy and safe. They want to be. So as
things change, how is OSHA being proactive in making sure
businesses know these changes, and how does proactive business
-- what is the best way -- if I am a businessperson in Bowling
Green, Kentucky, trying to run a factory, what is the best way
for me to know the best practices as these change every day,
the updates?
Ms. Sweatt. Well, we can update our website very quickly,
obviously. So as our documents go up, we put them out on the
website. We push them out in as many social media platforms as
we have available. And we have seen a dramatic increase in the
traffic to our website, in addition to our newsletters. So we
think employers and workers are seeking the best information
possible.
A lot of our website also links to our Federal partners,
NIOSH and CDC. They also have an abundance of guidance based on
what they are finding scientifically and medically. So we are
working as quickly as possible to provide the best information
to everyone.
Mr. Guthrie. Okay, thank you.
And then, Dr. Howard, I know the FDA -- because I have
oversight on FDA, my other Committee assignment, and did the
emergency use order for the certain respirators that are
certified in other countries for use. So how is your
organization, NIOSH, working with FDA to ensure these are safe
-- their efficacy is there and they are eligible to be used?
Dr. Howard. Well, thank you for that question. As I
mentioned, you know, we work very closely with FDA on these
emergency use authorizations that they publish. So our
laboratory looks at the fit of the respirator and the
filtration capability of the respirator. Those are the two main
attributes of a respirator that we are -- think are very
important.
A lot of these international respirators are made
internationally. And China, for instance, use ear loops. That
doesn't give you the best fit, for instance. We have to look at
both the filtration efficiency. And we have tested some of
those respirators. They don't come to the 95 percent of
filtration efficiency that an N95 is.
So we work with FDA. We get -- States, for instance, are
buying respirators from China. They send it to us for
evaluation. We perform the evaluation and give them the
results. We also share that with FDA. The FDA decides what
models they are going to put on their EUA based on our testing.
Mr. Guthrie. So you are saying the ear loops like this and
the rest of us --
Dr. Howard. The ear loops versus the ties behind the head.
The two big issues for protecting the lungs from atmosphere is
the fit. How tight the fit is so you don't get any leakage. And
that is hard with the ear loops, okay. You get less fit. And
the other is the material itself that filters the particles. So
filtering and fit, those are the two big things that we test
for.
Mr. Guthrie. Dr. Bucshon, who is a surgeon in another
Committee, we were talking, he says, yeah, people because they
are wearing the mask a lot, they can cough without having to
corrupt. And the problem is it can run out the sides, and it is
probably -- it creates a moral hazard sometimes. You have to be
careful with that.
So let me ask another question. I know that sometimes you
get conflicting information, businesses do and employers do.
And not in this, specifically. I don't have any examples. But I
know there are other areas that if you comply with one agency,
you are violating another agency. I have seen that before.
So, Ms. Sweatt and Dr. Howard, as more business are
reopening -- and I have heard from employers in Kentucky on how
critical to ensure the workplace safety guidance is consistent
across the Federal Government and that agencies are not
providing conflicting information -- can you both elaborate on
how you work together and coordinate the public health agencies
during the pandemic?
Dr. Howard. Well, I will take it first. We work very
closely with OSHA to make sure that does not happen. That is
the worst outcome that we as one government can make is to have
conflicting information.
So any information that involves the workplace, we run by
OSHA for their comments.
Mr. Guthrie. Okay.
Ms. Sweatt. I would say we have an excellent working
relationship with our Federal partners, especially at NIOSH and
CDC. I know our folks are on the phone with Dr. Howard's folks
all the time. But I do believe that in the response to this
pandemic, you have seen an all-of-government process here. And
so anything that we put out has also been vetted to make sure
that we are not in opposition with any of our other Federal
partners.
Mr. Guthrie. Thank you. And I appreciate the hard work you
guys are doing. And I know we are all concerned, both sides,
that people show up in a place where they can be safe and to
work. And I know you are trying to put that out in an ever-
changing environment. I know businesses are trying to figure
out how to do it in an ever-changing environment. And we all
need to work together and pull together to make this work. And
thank you for your efforts. I appreciate it very much.
I yield back.
Chairwoman Adams. Thank you, Mr. Guthrie.
Let me recognize the gentleman from Connecticut.
Mr. Courtney, you are recognized.
Mr. Courtney. Thank you, Madam Chairwoman, for holding this
hearing today.
This Saturday in New London, Connecticut, there is going to
be a memorial service for Elva Graveline, who was a certified
nurse's aide who worked at a local hospital there, 52 years
old, mother of two, grandmother of three, who succumbed to
COVID a couple of weeks ago.
And, again, there were stories in the human face of people
who really are the good guys. She was a caregiver who treated
her job as a CNA as a calling, not as a job, 23 years,
described as kindhearted. And, again, it just reinforces that
this is not a theoretical academic issue. This is really about
human beings who are doing right by all of us in terms of
keeping this country going forward.
I just wanted to just touch base with both witnesses about
the fact that this is not the first pandemic that OSHA has
encountered. The AIDS/HIV pandemic in the late -- mid eighties,
late eighties, and early nineties, OSHA acted, and it acted
very swiftly to put into place real standards in terms of
bloodborne pathogens.
My wife is a nurse practitioner. She worked at Bellevue
back in the eighties there, and she still remembers the day
where, again, you drew blood and used needles with no gloves.
And there was no such thing as disposable needles.
OSHA created, with the standard, an enforceable standard,
the regime that we now just sort of take for granted when we go
into hospitals. Was OSHA wrong to institute a standard versus
just operating with guidelines?
Ms. Sweatt. I believe OSHA followed the direction of this
Committee through a statutory requirement to establish that
standard.
Mr. Courtney. Correct. I mean, it was a prodding from
Congress that they actually moved. And again, it wasn't a 5- to
20-year process. I mean, it happened in much swifter terms.
And, again, Dr. Howard, did OSHA do the right thing by
implementing a standard to deal with AIDS/HIV?
Dr. Howard. I think so. And I would like to point out that
they followed California's lead in that area.
Mr. Courtney. So, again, when we talk about having a
standard put into place, this is not some wild, unprecedented
sort of notion. I mean, the fact of the matter is it is just
part of the reality every day when people walk into doctors'
offices or hospitals.
Again, Dr. Howard, your description of how to safely
disinfect N95 masks that you testified to earlier was, again, I
think a learning experience for all of us about the fact that
you have got to really actually do more than just throw it in
the washing machine. You know, there is real issues that you
got to do it the right way.
Why wouldn't that sort of, you know, standard be really
something that would help guide a lot of employers?
And I will tell you, because this is relevant in
Connecticut, which again has been very hard hit. Again, we have
had tremendous, you know, donations from, you know, private
individuals, as well as FEMA, in terms of getting masks, N95
masks. But some of them, as you point out, are different. They
are not all the same.
So if you are a hospital or a nursing home trying to, you
know, organize this, I mean, you need -- it sounds to me based
on your testimony -- you know, more than just lumping them all
together and disinfecting them in exactly the same fashion. So
why wouldn't that be a good thing to have, you know, that more
precise advice that you described out there so that employers
really would know that you have got to do more than just treat
them all the same?
Dr. Howard. Well, I certainly think that the more
specification that you can provide an employer, the more
helpful it is to that singular workplace. The problem is we
can't do guidance that is highly specific to each
establishment. So we have to do fairly general guidance and
then look at the application, help employers -- both NIOSH,
CDC, and OSHA, through their consultation service -- apply
those guidelines to their specific workplace.
Mr. Courtney. But, again, having a standard, which just
says you have got to look at the manufacturer's specifications
when you are going to reuse, you know, N95 masks, that is just,
like you pointed out, necessary to make sure that these workers
when they reuse them are actually going to be protected.
And, again, I would just say, you know, one of my wife's
good friends back home is a nurse at a local hospital who has
been intubating COVID patients with reused N95 masks. I mean,
they were basically reusing them over a period of 7 days. You
could not get in a more high-risk situation than intubating a
patient as a worker. And, you know, that just shows how life
and death -- you know, having real standards out there so that
people like Dawn are going to be safe in terms of doing, you
know, just amazing work in terms of saving lives.
I yield back.
Mr. Scott. [Presiding.] Thank you.
Is the gentleman from Michigan prepared to ask questions?
Mr. Levin. Yes.
Mr. Scott. The gentleman from Michigan is recognized for 5
minutes.
Mr. Levin. Thank you, Mr. Chairman.
Mr. Scott. Wait a minute. Excuse me, Andy. The other
gentleman from Michigan, Mr. Walberg. I am sorry.
Mr. Levin. Oh, okay, I am sorry.
Hi, Tim.
I yield to my esteemed colleague from Michigan, Mr.
Walberg. Sorry.
Mr. Walberg. Andy, it is good to see you. I hope you are
well. I just wondered what that guy was spraying or looking at
in your basement or whatever. So it has been interesting to
watch.
Mr. Levin. I will tell you later.
Mr. Walberg. Okay.
Thank you, Mr. Chairman, for holding this hearing. And I
would concur that we ought to do this regularly, have live
hearings where we are here in the room. It is the best way to
get the work done. And I think by now we should be capable of
handling this. Plus, we have a lot to consider.
Loren, it is good to see you back.
Ms. Sweatt. Thank you, sir.
Mr. Walberg. It seems strange that you are not sitting
behind me and telling me what to say and what to do when I
chaired this Subcommittee for 6 years.
Ms. Sweatt. I agree.
Mr. Walberg. So you got me through well on that. And I am
sure that you are giving it your best, best effort now where
you are at. We appreciate that.
Having been away for votes, I probably missed some
questions I might have asked. But there were a few that I
really wanted to ask you as well, and it goes back to guidance.
And as we wrestle with that whole idea, I know during the time
we worked together, on what rules need to be in place and what
laws had to be in place, and how you could work in a system
that mandated you be loose on your feet, as it were, to deal
with situations that came up, whether it was in a mining
situation or a manufacturing situation or now, of course, the
hospital situations that are going on.
Let me ask again why the agency believes it is better to
issue guidance as opposed to a new regulation response to
COVID-19 spread? And if you could also provide a real-world
example of where your agency would have been delayed in this
response if you had a hard-and-fast rule or law in place as
opposed to guidance.
Ms. Sweatt. Thank you, Mr. Walberg. And I appreciate the
kind words, and I share the sentiment.
But I think what we have seen over the last 3 months is, as
I said, we are at 5,000 complaints related to COVID. And the
agencies take in almost the same number of complaints that are
in our, unfortunately, normal safety and health concerns.
So with the way this virus has changed and our
understanding of it, our guidance documents have been able to
address what we know today. We issued construction guidance
just on Monday. We have more coming out maybe even as I speak.
And, you know, we have gone from the idea of not wearing masks
to now everyone, almost everyone in this room wearing masks.
And that is a 2-month evolution of thought process.
So we are able to look at what is happening and respond and
put that information out as expeditiously as possible through
our website. And yet our folks are still, as I have said, 24/7
out there responding to COVID and, unfortunately, responding to
other safety and health concerns. As people are returning to
work, we are seeing a small increase in problems related to
what I would call what we do on an everyday basis related to
safety and health.
So this is a good opportunity, I think, to remind folks
that all of their obligations exist under the OSH Act and that
employers need to really be focused on those as they restart
their businesses.
Mr. Walberg. In a Committee-Democrat forum held on May 14,
former Assistant Secretary for OSHA, David Michaels, who I
worked with extensively back then, told Members that if he was
in charge of the agency during the COVID-19 pandemic, it would
be doing inspections of high-profile workplaces and would be
talking to the media to inform workers of their rights. Yet by
all accounts, OSHA is doing just that.
Can you elaborate on the department's efforts in this
regard? And are there any other misleading statements made by
our friends on the other side of the aisle that their union
allies -- and their union allies that you would like to clear
up?
Ms. Sweatt. I would like to highlight one part of your
question about whistleblowers. I think you could not get a
better spokesperson for whistleblower protection than the
Secretary of Labor at the White House. And he pointedly said,
on April 9, that retaliation would not be tolerated. Our
whistleblower investigators have tackled the almost 2,000 COVID
complaints that we have received and the other 2,000 complaints
that we have received from our other 23 or 22 statutes.
So we have seen success with reinstatement of
whistleblowers. We have seen, as I said, letters of reprimand
removed. And we have seen actual policy changes by businesses
to ensure that workers have the right to express concerns about
their safety and health in the workplace.
I am not really sure where people aren't seeing that
message, but truly, the Secretary of Labor -- there is no
higher authority, in my world, from the White House to
determine and determinly say that this is not acceptable
behavior.
Mr. Walberg. I appreciate that. Thank you.
I yield back.
Mr. Scott. Thank you. The gentlelady from Oregon, Ms.
Bonamici.
Ms. Bonamici. Thank you to the Chair and the Ranking
Member, and also to our witnesses today.
We just, yesterday, in the United States passed 100,000
deaths. And those aren't just numbers, they are real people.
And our thoughts and prayers are with their families. But we
have to keep in mind that the Occupational Safety and Health
Administration and the National Institute for Occupational
Safety and Health have an obligation to prevent workers from
hazardous conditions on the job, and they are falling short.
Too many workers are facing risks at work.
In the absence of leadership from the agencies, I was proud
to join Chairman Scott in introducing the COVID-19 Every Worker
Protection Act, and I was pleased that it was included in The
Heroes Act. And my thoughts are with those essential workers
who are showing up every day despite the risks -- the nurses,
the doctors, the grocery store workers, the firefighters,
postal employers, childcare workers, health workers. They are
the heart and soul of our communities right now, and they are
going to help us get through this.
Dr. Howard, I want to ask you this, CDC recently changed
its guidance allowing healthcare workers to use surgical masks
rather than N95 respirators. After the CDC issued this
guidance, and many hospitals denied healthcare workers access
to N95s, news reports document cases of healthcare workers who
objected to the CDC guidance and had their credentials
challenged and were fired for insubordination, and some
tragically died of COVID-19 because they lacked access to prep
or PPE, personal protective equipment.
So, Dr. Howard, was the change in the CDC guidance based on
shortages in personal protective equipment or based on new
scientific information?
Dr. Howard. Thank you for that question. The answer is
unequivocally it was based on a crisis strategy that we have a
global shortage of the supply of N95 respirators. The science
has not changed. It is only our current situation of supply.
Ms. Bonamici. Thank you.
Ms. Sweatt, you noted in your testimony that OSHA has the
tools to protect workers from COVID-19 by enforcing the general
duty clause and other existing OSHA standards. OSHA has
received, as you noted, nearly 5,000 complaints and referrals
related to COVID-19, and those range, it is my understanding,
from outbreaks in the workplace to lack of access to PPE and
insufficient physical distancing practices.
The majority of these cases have been closed without
action. So Ms. Sweatt, how many COVID-19-related citations has
OSHA issued under the general duty clause?
Ms. Sweatt. Sorry. At this point, we have issued one
citation under an existing standard, and I would note that we
still have 6 months to complete any investigation or
enforcement action.
So I think relying on looking at citations is maybe not the
best parameters here. What we are really trying to do is remove
the worker from the hazard or remove the hazard from the
workplace. And so our priority has been that. We have been
proactively working on all of those issues when we receive
these complaints. Employers get information, in case they are
not fully aware, and they are able to change their work
practice. Where we do not find an employer who is protecting
their workers, we will enforce --
Ms. Bonamici. Ms. Sweatt, I am going to reclaim my time
because I have some more questions. How many COVID-19-related
citations has OSHA issued under any existing standard during
COVID-19?
Ms. Sweatt. As I said, we have had one within the last
week, and, you know, there is still a very -- a substantial
amount of time within our statute of limitations. These --
Ms. Bonamici. I understand. But just one, and it is my
understanding that was for a recordkeeping violation.
Ms. Sweatt. It was --
Ms. Bonamici. And I understand the general duty clause
citation could take more time, which is why it would be more
efficient and effective for OSHA to issue an Emergency
Temporary Standard. But in your testimony, you emphasize that
OSHA's existing standards for respirators, PPE, and
sanitations, can these citations be issued faster?
Ms. Sweatt. We have to build a legal case to defend our
citations, and I do not believe that rushing to issue a
citation is really the best effort. What our folks need to do
and are doing is proactively inspect and investigate all
complaints that we receive and build the appropriate legal case
to defend those. To issue a citation that is not legally
defensible would be irresponsible on our part.
Ms. Bonamici. And I appreciate that, but in my home State
of Oregon, Oregon OSHA has been more proactive. Their efforts
have not been perfect, but I have been calling on them to do
more to protect workers. Oregon OSHA recently issued a willful
violation to a business in only 9 days. So what prevents
Federal OSHA issuing citations in a similar time --
Ms. Sweatt. Nothing prevents that, but what I don't think
you see related to our complaints is, when we provide the
employer information to protect their workers and their
practices change. And that is one of the key elements is to
remove the worker from the hazard or remove the hazard.
So we think that there is positive action occurring when we
have taken these complaints. And when we see an employer who is
not moving to make appropriate changes, we can enforce.
Ms. Bonamici. Well, I also want to note, Mr. Chairman, and
colleagues, this committee received a letter from Dr. Rayfield,
dated May 20, and with that letter, Dr. -- excuse me --
Redfield attached the table with the CDC available data on
healthcare worker infection rates.
He also noted that it is likely an underestimate and not
all cases are reported to the CDC. And I just want to note how
challenging it is not only for you at OSHA and NIOSH to do your
work but for us as policymakers to make good policy decisions
without good data, so -- and I know my time is about to expire,
or has expired. But I just want to note --
Mr. Scott. It has expired.
Ms. Bonamici. -- that we really need good data, and we
don't have it.
Thank you, Mr. Chairman. I yield back.
Mr. Scott. Thank you. The gentleman from Wisconsin, Mr.
Grothman.
Mr. Grothman. Yes. A couple questions. First of all, I
think things are getting better. But part of the problem you
are going to hear from employers is a lack of PPE. Okay? And in
my district, we have some ability to make more masks, for
example, which I think is one of the big things that employers
are going to need. But I am wondering, are either of your
agencies doing anything? It frustrates me, because I think we
should have been weighing in harder, and the industry in my
district is just doing yeoman's work in getting their new
machines up and running quicker than they would under normal
circumstances.
But I am a little bit frustrated, say, with regard to FEMA,
who I think maybe could have waited a little bit more or done a
little bit more. Are you guys doing anything in your agencies
to make sure that PPE is available for the businesses, or
keeping track of how much we need, or working in coordination
with FEMA or something like that?
Ms. Sweatt. I will start very quickly, because I think Dr.
Howard has a more robust responsibility in this area. One thing
that OSHA has participated in over the last 3 months is the
supply chain task force, and so our folks have been working
with our Federal partners to determine how we can get more
supply in.
And, again, I testified previously, the most important
thing that we did was our five guidance documents to try and
assure that there was PPE respiratory protection available
related to the burn rate within hospitals. And I will refer to
Dr. Howard.
Dr. Howard. Thank you very much. We work at NIOSH with our
partners at CDC. CDC is part of the National Response
Coordination Center, which is run by FEMA. Currently, the SNS,
the national stockpile, is purchasing 800 million respirators.
On the supply side, 3M is now up to 90 million respirators per
month. Honeywell is up to 20 million respirators per month. So
we are seeing a change now from where we were 3 months ago. So
the supply is increasing.
Now, I can't say the distribution of that supply in every
corner of the United States is the same, but the supply
pipeline is increasing.
Mr. Grothman. Okay. How many masks a month do you think we
need?
Dr. Howard. You know, that is a very difficult thing to
figure out.
Mr. Grothman. You can --
Dr. Howard. One of the things that the NRCC is doing is
looking at, as Loren said, that supply chain, what is the
utilization. And we have a PPE burn rate calculator, which is
now an app, that individual hospitals can use to figure out
their own burn rate of that PPE.
And we have a PPE monitoring system where we have about a
hundred hospitals enrolled to date where we are developing that
national system so we can figure out what is the inventory and
what is the utilization rate.
Mr. Grothman. Presumably you want some in places other than
hospitals too. Aren't there other employers who you are going
to want it for as well?
Dr. Howard. Sure. What we are talking about though right
now is the N95 respirator, which is, as we talked about, used
for aerosolized procedures in hospitals.
Mr. Grothman. And what is your target? How many a day do
you think you need? Do you have -- you must have an idea.
Dr. Howard. Well, we are talking in the billions in order
to bring us --
Mr. Grothman. Two million? Five million? What is your
target?
Dr. Howard. For the national supply?
Mr. Grothman. Correct.
Dr. Howard. Yeah, that number I don't know, but it is
certainly in the billions.
Mr. Grothman. Okay. Ms. Sweatt, thanks for being here
again. I would like to ask you how OSHA helps employers
determine worker risk of occupational exposure to COVID-19. I
have a lot of manufacturing facilities in my district. Based on
their specific operations, manufacturers may feel they fall
into high-risk, medium-risk, low-risk. What is the biggest
determining factor in the decision as to how close
manufacturing workers are?
What is the biggest factor determining how close
manufacturing workers can be to each other throughout the day,
and what are other factors that go into the classification of
high-risk, medium-risk, or low-risk?
Ms. Sweatt. Sure. It is the sustained contact issue. So I
think we have put out manufacturing guidance to help folks work
through the issues. It is really incumbent upon the employer to
do an analysis of their work practices and determine if there
are changes that they can make. And you know, we have our
hierarchy of controls within there.
I know some folks find that to be maybe tedious, but I
think that manufacturers have folks that are, you know, trained
in this area, but it is really an important part of the agency
as well, that we have compliance assistance specialists, and
they are available.
Mr. Grothman. I have one more quick question which just
kind of popped into my head.
Ms. Sweatt. Sure.
Mr. Grothman. There was a feeling among some medical
professionals that eventually regardless of what we do, this
COVID is going to go through the population, that we should
maybe protect the vulnerable, but it is inevitable that it will
go through the population as a whole. The only question is how
long that is going to take. Do you believe that or not? Five
years from now, assuming we don't get a vaccine, is everybody
going to be touched by it or not? What do you think?
Ms. Sweatt. I think that is outside of my jurisdiction at
OSHA, and I would refer to Dr. Howard.
Chairwoman Adams. Thank you very much. We --
Dr. Howard. Do you want me to respond?
Chairwoman Adams. Briefly.
Dr. Howard. Yeah. There is no timeline. As Dr. Fauci has
said at NIH, we are talking about 12 to 18 months, perhaps, at
the outside for a vaccine. We hope for it being sooner. That
would certainly be great. The issue about everybody in the
population getting COVID-19, the issue is, do they all show up
in the same emergency room at the same time? That is the issue,
is protecting the healthcare system.
Mr. Grothman. Do you believe it is inevitable over 5 years?
Dr. Howard. I don't believe it is inevitable, but I do
think that if everybody gets it all at once, you are going to
end up crashing your healthcare system.
Chairwoman Adams. Thank you very much. Thank you very much.
Let me recognize our distinguished Chair of Education and
Labor Committee, the gentleman from Virginia, Mr. Scott. You
are recognized.
Mr. Scott. Thank you, and thank our witnesses for being
with us today. Ms. Sweatt, you have indicated that you are not
responding to questions involving the Emergency Temporary
Standard. I agree with the gentleman from Alabama that no good
lawyer likes his client talking about issues under litigation,
but as the Chair has indicated, you need a legal basis for that
claim. Are you claiming a legal privilege, and if so, which
specific privilege are you claiming?
Ms. Sweatt. I have been advised by Department counsel not
to answer questions on ETS.
Mr. Scott. Can you provide for the record -- apparently you
don't know which privilege they are using. If you could provide
for the Committee exactly which legal privilege you are relying
on, in order not to answer questions.
Ms. Sweatt. [Nonverbal response.]
Mr. Scott. And you have indicated in your testimony that
OSHA considers retaliation against workers unacceptable. How
many complaints of retaliation has OSHA received, and how many
businesses have been sanctioned for retaliation?
Ms. Sweatt. We have, as of May 26, 1,374 whistleblower
complaints for COVID, and there is no statute of limitations on
the investigations of those. So while investigations are
ongoing, I can tell you in certain circumstances, we have seen
resolution almost immediately when the whistleblower calls to
initiate the investigation and --
Mr. Scott. Well, by ``resolution,'' do you mean the worker
got their job back?
Ms. Sweatt. Yes, sir.
Mr. Scott. Well, that is not a sanction. They shouldn't
have been fired to begin with. How many businesses have been
sanctioned?
Ms. Sweatt. At this juncture, I don't believe we have
issued any sanctions per se.
Mr. Scott. So the --
Ms. Sweatt. We have seen back pay -- reinstatement and
backpay. And I think one of the more important issues is the
change of approach by some of these businesses about how they
address safety and health.
Mr. Scott. So people have been fired in retaliation for
making a complaint, and the businesses really show no -- there
is no deterrence for that action?
Ms. Sweatt. They reinstate, and they have to pay backpay.
Mr. Scott. Okay. At which they owed the pay to begin with,
and the person shouldn't have been fired to begin with, but
there is no sanction.
We know that there are many deaths in nursing homes, meat-
packing plants, as well as healthcare facilities. The general
duty clause is generally used after a death or serious injury,
not for prevention. How many site visits have been conducted by
OSHA, proactively for prevention, rather than in response to a
death or some kind of complaint?
Ms. Sweatt. I would say everything that we do is proactive,
and we have issued nursing home guidance. And I would also
point back to everything that we have done to try and protect
the respirator supply for individuals in --
Mr. Scott. But I asked you, how many have been proactive
and not in response to a death or a complaint? In your response
to questions in writing that you responded, you said all of
OSHA's inspections are initiated through unprogrammed activity,
those were either opened as a fatality inspection, catastrophe
inspection, response to employer reports of hospitalized
workers or initiated in response to complaints. None were
proactive prevention.
Ms. Sweatt. I would say that if you look at what we have
done in previous natural disasters or other emergency
situations where we have suspended enforcement, we proactively
chose to not suspend enforcement in this area, and so, in fact,
we have proactively pursued complaint inspections and
investigations and done onsite --
Mr. Scott. Proactively in response to complaints, that is
not proactive. Is OSHA bound by the policy of eliminating two
rules in order to establish a new rule?
Ms. Sweatt. The Department as a whole is, yes.
Mr. Scott. So you can't establish an Emergency Temporary
Standard without repealing two other rules?
Ms. Sweatt. I think that is a question that you are trying
to get on the Emergency Temporary Standard area. The two-for-
one is larger than just the agency.
Mr. Scott. Okay well --
Ms. Sweatt. And so --
Mr. Scott. I have a question for Dr. Howard. You formerly
worked in California. Does California have an airborne
transmissible disease standard, and what should Congress
consider in drafting legislation to protect workers from
airborne infectious diseases?
Dr. Howard. Well, certainly California does have an aerosol
transmissible disease standard. But I will leave the
legislating to people who do that for a living.
Mr. Scott. How long has it been in effect?
Dr. Howard. I think it was 2013, somewhere around there. It
was in development for a number of years before that.
Mr. Scott. Thank you, Madam Chair.
Chairwoman Adams. Thank you. Thank you, Mr. Scott.
The gentleman from Kentucky, Mr. Comer, you are recognized.
Mr. Comer. Thank you, Madam Chair. Ms. Sweatt, we have
heard untrue claims that the Trump Administration did not act
soon enough to prevent coronavirus from entering our country.
Can you give some detail about the actions taken by your agency
prior to COVID-19 being declared a pandemic by the World Health
Organization on March 11th to ensure that healthcare workers
and other essential businesses were prepared to respond to
unprecedented workplace safety challenges?
Ms. Sweatt. Thank you, Congressman, for the question. OSHA
had started as early as January of this year putting
information on our website, through a safety and health topics
page, to inform individuals about the pandemic, which at that
point was an unknown novel coronavirus. We have pursued
updating our safety and health topics page.
We outlined what standards we thought employers should be
aware of, that they should be in compliance with, and we have
subsequently provided general industry guidance, along with
almost 20 actual individual industry guidance documents to help
employers respond to this pandemic.
Mr. Comer. Dr. Howard, the poultry and beef cattle
industries are major industries in my congressional district,
and I have four major poultry processing facilities located in
my district. Two of those have been significantly affected by
minor COVID-19 outbreaks. You testified that NIOSH has been on
the ground in dozens of meat-packing and meat-processing
facilities across the country, conducting site visits, and
providing recommendations to employers based on your
observations. Can you explain some of the workplace safety
challenges you have observed in these facilities and how
businesses are implementing measures to address these
challenges?
Dr. Howard. Sure. As I said, you know this -- whether it is
beef or pork or chicken, these are very labor-intensive
activities. And people are extremely close together on a
production line, and if the fundamental principle for
protecting workers from COVID-19 is to separate people, it is
really a feasibility challenge in these meat-processing plants.
So we have come up with a number of different
recommendations. In fact, they fill about 15 pages of our joint
CDC/OSHA guidance, to try to help employers figure out how they
can do that and still be able to produce the food the country
needs. And that is a real challenge.
Mr. Comer. I think we have learned as a public -- I am an
agriculture guy, a former Commissioner of agriculture, so I
knew this already, but a lot of Americans are figuring out that
employees at food processing facilities are very essential
workers. So I appreciate what you are doing there.
There have been a few local hotspots in my congressional
district, very few. I have 35 counties, I have probably had
four counties that have had any, you know, measurable activity
as far as being a hotspot in my congressional district. I am
very thankful for that. And in Kentucky, businesses are slowly
-- and I can't say this enough in Kentucky -- very slowly
reopening.
Every employer wants safety, that I know of. The CDC now
recommends that everyone should wear a mask in public settings.
This would apply to businesses and their employees as they
return to the workplaces. Dr. Howard, are there any
circumstances in which an employer should not have their
employees wear a mask?
Dr. Howard. Well, there are. There are some folks that have
preexisting respiratory conditions. Things that are over their
mouth make it difficult for them to breathe. They already have
a difficult time breathing, so putting a mask on their nose and
mouth can make it more difficult. So certainly those folks may
not be able to wear a respirator, and they may complain to the
employer. They just can't tolerate it. So some workers are
going to be in that category.
Mr. Comer. What about the recommendation that some States
are implementing, I think based on CDC recommendations, with
respect to youth sports, that young people wear masks, for
example, playing baseball this summer? My son's on a tribal
baseball team, and, you know, the temperature gets up in the
hundred-degree weather and they are outside, they are spread
out pretty good, but our governor came out and said that those
kids need to wear masks.
Is that something that should be of a concern for the
children, 11, 12 years old or younger, wearing masks outside in
hundred-degree weather?
Dr. Howard. You know, CDC is just getting into the area of
sports, both professional, amateur, and children's sports. So
we don't have a lot of guidance on that area, but these are the
kind of issues that we are all going to face as we approach the
summer in terms of reopening.
Chairwoman Adams. Thank you, sir.
Dr. Howard. So these are the things that we are thinking
about.
Mr. Comer. Thank you.
Chairwoman Adams. Thank you.
All right. Thank you very much. I would like to recognize
the gentleman from Michigan. Mr. Levin, you are recognized,
sir.
Mr. Levin. Thank you so much, Madam Chairwoman, and thanks
for holding this very important hearing. Earlier I think
perhaps in the discussion with Mr. Courtney, Dr. Howard, you
said that during the AIDS crisis, Congress required and OSHA
implemented a mandatory standard to protect workers during the
AIDS crisis. Is that correct?
Dr. Howard. Yes. I think it was actually Ms. Sweatt that
referred to the congressional mandate at that time.
Mr. Levin. Okay. But so that happened then. And then some
of my colleagues mentioned that, quite extensively, that the
Trump Administration has acted similarly to the Obama
Administration during the SARS outbreak, and so that this is an
appropriate response.
Ms. Sweatt, are you aware of how many Americans died during
the SARS outbreak?
Ms. Sweatt. I don't have those figures in front of me, no.
Mr. Levin. Well, let me share them with you from the CDC
website. In the United States of America, eight persons were
laboratory confirmed as SARS cases, and there were no SARS-
related deaths in the United States. Would you consider that to
be a comparable situation to what we are going through now?
Ms. Sweatt. I can tell you from the place that I sit at the
occupational safety -- excuse me?
Mr. Levin. I think that is a yes or no question. Ma'am, I
am sorry I am not in the room with you, but that is a yes or no
question.
Ms. Sweatt. I have to tell you, from where I sit at the
Occupational Safety and Health Administration, we are at almost
5,000 complaints on COVID, and we are responding as rapidly as
we can.
Mr. Levin. Okay. I am going to move on. I have got to move
on with my questions. So NPR just reported this morning that we
have had close to 300 United States healthcare workers alone
killed by COVID-19. And obviously we have had a hundred
thousand Americans who have passed away from COVID-19. Ms.
Sweatt, given --
Ms. Sweatt, more than three-quarters of OSHA's COVID-19-
related inspections have been fatality investigations. To put
it bluntly, OSHA is stepping in only once someone has died.
Every day I get calls from workers who are terrified that they
will become sick in their workplaces. Many worry not for their
own lives but for the lives of sick or elderly family members
that they reside with and support. What should I tell those
frightened workers and those vulnerable workers about the fact
that OSHA refuses to issue any mandatory standards in the
greatest workplace healthcare crisis in our history?
Ms. Sweatt. As I have said before, OSHA has existing
standards to address a variety of aspects of this virus, and we
are enforcing where we find failure to comply.
Mr. Levin. Ma'am, you have issued one citation in the
greatest crisis. You say you are acting proactively, but in
fact, what you are doing is the definition of reactive. You are
refusing to act proactively and issue a mandatory standard of
any kind during the greatest healthcare crisis in the workplace
in modern history.
If your agency inspects workplaces only after a worker has
died, you are not preventing worker infections. I would suggest
that your agency could be acting strategically, looking
proactively at industry sectors, determining the worst actors,
identifying infection vectors, and protecting workers from
being put in situations of unnecessary and cruel risk. But your
agency is waiting for the worst possible outcomes before taking
action. This is simply unconscionable.
Let me ask a question of Dr. Howard. Sir, how long have you
been in this field of occupational medicine yourself?
Dr. Howard. Since 1981.
Mr. Levin. And, sir, have you ever seen a comparable
situation of the scope and scale of health risk in American
workplaces during your long and distinguished career?
Dr. Howard. The only comparison I can make is in the 1980s
with the human immunodeficiency virus.
Chairwoman Adams. Thank you very much. You are out of time.
Thank you.
I want to recognize now the gentleman from Pennsylvania,
Mr. Smucker.
Mr. Smucker. Thank you, Madam Chair. Ms. Sweatt, thank you
so much for rebalancing OSHA's mission to ensure compliance
assistance is a priority. As a former construction business
owner, I know how important that can be. Employers really do
want to do the right thing. They care about their employees.
They want to keep employees safe. And feeling like they can ask
OSHA for assistance to ensure they are doing things correctly
is absolutely critical.
It appears to me my colleagues on the other side of the
aisle are looking to pin OSHA as the scapegoat and place blame
for the spread of a global pandemic on employers. And I will
just, food for thought, that may seem like a pro-worker stance
right now, but it won't be very pro-worker when their misguided
targeting causes them to lose all their jobs due to business
closures.
So a question for you, my colleagues on the other side of
the aisle seem to think the guidance you put out is optional
and that employers can choose to follow them. They will argue
that this is why we need to pass more onerous laws that will
end up in a legal spider web that do not meet the needs of all
industries.
Do you think that rhetoric could ultimately be more
dangerous for workers if employers are misled to believe that
they don't legally need to follow your guidance?
Ms. Sweatt. Well, I definitely think it is problematic, but
I think what we need to say here is employers do need to know
and understand their obligations under the Occupational Safety
and Health Act. They need to make a plan. They need to
determine what they need to do to protect their workers, and
the time to do that is now before a dramatic reopening.
I know we have talked a lot today about essential workers,
and, you know, we have looked at a lot of these essential
worker categories and have tried to provide the best updated
scientifically accurate guidance that we can, and you know, we
will continue to do our work.
And if I could respond briefly to the previous question
that I received. You know, OSHA has responded to almost 5,000
COVID complaints, and what we are trying to achieve every day
is removing the worker from the hazard or removing the hazard
from the workplace.
Mr. Smucker. So can you tell me a little bit more about
that process, the screening process, when you do get a
complaint? How does it get evaluated? How long does it take?
How is it determined that OSHA will open an investigation, and
if so, what does the investigation entail?
Ms. Sweatt. Thank you. The investigation entails the
employer being put immediately on alert that we understand
there could be a problem in their workplace. They have to
respond to us. They have to tell us what they are doing to
resolve the complaint. If we find the resolution that they have
proffered inappropriate or not protective of the worker, we can
convert to an inspection and, you know, work to our
enforcement.
But again, it is removing the worker from the hazard or
removing the hazard from the workplace. These are really the
goals that we need to be focused on to protect workers and not
just issuing citations.
Mr. Smucker. Thank you. I am going to go to Dr. Howard. I
would like to thank you for the work that your agency is doing
to produce the guidance that all Americans are relying on to
make safe decisions as they navigate the threat of COVID-19. We
appreciate all the long hours that both you and your team at
NIOSH, as well as the team folks at OSHA are putting in to
ensure that guidance is there. It really is needed for
employers to safely reopen.
I know NIOSH has played a central role in finding ways to
overcome the global shortage of PPE. And we have heard from
hospitals in our district that it has been difficult to find
sources. Just what information can you share to help them
address PPE shortages and also employers as well? How do they
find appropriate and safe PPE?
Dr. Howard. Well, as I mentioned before, the supply of
filtering facepiece respirators, like N95s, is increasing. I
pointed out that domestic manufacturers, like 3M and Honeywell,
have doubled, tripled their production capabilities. 3M is
making 90 million N95s per month. Honeywell is making 20
million N95s per month.
Mr. Smucker. I want to get in one additional question. I
know that CDC collects data on instances in which COVID
exposure could have happened in the workplace. How can we truly
determine if someone's exposure did indeed occur in the
workplace?
Dr. Howard. Well, thank you for that question. That is a
very difficult question to answer, to tease out what is true
occupational exposure from what is community exposure that is
then carried into the workplace. Remember, this virus doesn't
have wings or feet. It has to have a person carry it around.
So distinguishing between occupational transmission and
community transmission is a topic that is involving some very
smart epidemiologists at CDC currently.
Chairwoman Adams. Thank you very much. You are out of time.
Let me recognize now the gentle lady from Florida, Dr.
Shalala. You are recognized.
Ms. Shalala. Thank you very much. Ms. Sweatt, you told
Representative Bath to look at the regulatory agenda for the
status of the OSHA infectious disease standard. That standard
is languishing on a long-term agenda -- after a hundred
thousand deaths and thousands of worker deaths, how can you not
be working on that particular standard?
Ms. Sweatt. Thank you for the question, Dr. Shalala.
Because at this juncture, we are working on responding to the
COVID pandemic, and I am putting the regulatory agenda aside.
The work of this agency has been focused on protecting workers
and, again, removing them from the hazard. And that is, you
know, our primary mission and goal right now is to execute that
work.
Ms. Shalala. I didn't understand that answer, but let me go
on to Dr. Howard because I am interested in data. The CMS has
issued regulations that require that all long-term care
facilities and nursing homes that receive Medicare and Medicaid
funding report the number of infections and deaths among
residents and staff members, PPE supplies, staffing shortages,
and testing -- CMS has said that these facility reports will be
publicly available.
Wouldn't it make sense to add the requirement for hospitals
to report healthcare worker COVID-19 infections and deaths to
the existing reporting requirements? I looked at the CDC new
requirements for the States. CMS is going to collect better
data, and I would think that after they set out the nursing
home and long-term care facilities data that they wanted, that
they ought to extend it to hospitals and other healthcare
institutions. Could you react to that?
Dr. Howard. Sure. And I think that is up to CMS, but on the
CDC front, we are moving in data modernization to taking the
beginning of the pipeline for disease surveillance data, which
is the healthcare facility, and then the State health
department and then to CDC, we are looking at electronic data
modernization, and we thank the Congress for the additional
funds that are available there.
In the here and now, we have redone our case report form
which includes specific sections about healthcare workers, as
well as workplace exposures. So we are hoping that new form,
which the States now are getting up to speed on, will improve
our ability to know exactly where the occupational -- industry
and occupations are in the American workforce.
Ms. Shalala. Let me follow up on that. As you know, the CDC
has had trouble getting States to use uniform standards for
information so that you couldn't compare it nationally. Will
this particular standard be the same for every State, or will
they be able to vary it as they have in the past?
Dr. Howard. Thank you for that question. Excellent
question. We are trying to move to a uniform national
surveillance disease reporting system. So that is the goal.
With the cooperation of the States, we hope that -- and the
States have challenges. Some States have some IT support
challenges in getting there, but hopefully we are going to be
much better off than we have been in terms of national disease
surveillance.
Ms. Shalala. It includes nursing homes, I assume?
Dr. Howard. Yes. It includes any kind of institution that
is reporting disease that, as you well know, having been
Secretary of HHS, the CSTE and CDC have agreed to collaborate
on reporting that particular condition to the Federal
Government.
Ms. Shalala. Thank you. I yield back.
Chairwoman Adams. Thank you very much.
I want to yield now to the gentleman from Kansas, Mr.
Watkins. You are recognized.
Oh, I am sorry.
Mr. Watkins. Thank you, Madam Chair.
Chairwoman Adams. Oh, just a minute, I am sorry. Mr.
Meuser, you are recognized. I apologize, Mr. Watkins.
Mr. Watkins. No apology necessary. Thank you, Madam Chair.
Mr. Meuser. Well, thank you, thank you both for being here
very much, being present and answering our questions.
So getting our economy open, getting people back to work is
just about a top priority, right above all else, as well as
getting our schools open, come September. So maybe I could ask
a couple questions about that as well.
But what is crucial, of course, is that businesses open
with a high level of health and safety workplace standards. And
I am a firm believer that our businesses need to open, but we
need to in a very responsible manner. And I don't think that
this is going to be over the short-term. Businesses need to
prepare for a longer term, evolving, always improving health
and safety work environment.
So from OSHA's standpoint, I know, Ms. Sweatt, you have
been putting out -- OSHA has been putting out guidance for a
while now, I think as many as 26 or 27 different forms of
workplace guidance. I assume that is going to continue to
evolve and -- I haven't read them all, my apologies -- but are
you offering the essentials behind social distancing -- and
again as guidance -- PPEs, the masks, when it is appropriate to
wear gloves? Is OSHA's guidance getting that specific?
Ms. Sweatt. Our guidance is pretty comprehensive, yes. And
I think as folks look to returning to work, employers should
start to plan now about how they are going to protect their
workers. They can do that by examining work practices, and our
guidance speaks to a variety of different work practices.
So, yes, for example, our meat-packing guidance discusses
social distancing as well as carpooling. So I think that it is
robust guidance to provide information to employers and
workers.
Mr. Meuser. Okay. Are businesses, are you finding, asking
for any additional funding or some sort of support to set
themselves up with plexiglass and everything else? Who knows,
maybe even building another annex, so all workplace areas can
be six feet apart? Are you getting any requests such as that?
Ms. Sweatt. I am not getting funding requests, but our
compliance assistance specialists, and our compliance
assistance program has received almost 5,000 requests for
information, so I think people are looking to the agency for
answers.
Mr. Meuser. Okay. And Dr. Howard, are you involved as well
in putting out guidance for workplace? I read some of your
background.
Dr. Howard. Yes. That is an understatement. We have reams
of guidance available in very specific situations.
Mr. Meuser. Okay. Is CDC, is OSHA adopting it? Are you
finding it to be practical and useful?
Dr. Howard. A lot of the guidance that relates to
workplaces specifically and workers are reviewed by OSHA folks
before they are issued by CDC, so there is a collaborative
effort.
Mr. Meuser. Okay. Is OSHA finding high level of compliance?
I spend a tremendous amount of time talking with businesses
throughout my district and visiting them, even under today's
circumstances, because they are working, and so we go out. Are
you finding a high level of compliance, Ms. Sweatt?
Ms. Sweatt. I think there is a mixture of results, but I do
think that employers are attempting to achieve the best
protection that they can. And again, where we fail to see that,
our enforcement folks will be right there.
Mr. Meuser. Okay. I would -- do you offer any models? Do
you use any companies as examples? There are many throughout my
district if you are interested in those that not only have made
their workplace very comfortable and very safe, but the records
show it. Many of them have had no COVID cases with over 500
employees, and they have been following strict guidelines, that
they get the feedback from their workers, which is smart, for
how to achieve this. Are you gaining such information on a
regular basis and offering models?
Ms. Sweatt. We are very fortunate that people are providing
some of their return-to-work practices, and so we can review
that in the context of our standards, and you know, we are
actively participating in webinars with a variety of
stakeholders, and the union folks have been talking to us.
So we are engaged, we are open, we are listening, and we
will adapt our guidance documents to what we are learning.
Mr. Meuser. Well, it is very important, obviously not a
higher priority than finding a vaccine and correcting the virus
itself. Lastly, are you providing any information for
restaurants and -- for the actual opening? Are you planning
ahead for what restaurants can do in order to open safely?
Ms. Sweatt. There is CDC guidance available already, yeah.
Dr. Howard. CDC has guidance on restaurants and bars.
Mr. Meuser. Right. But it needs to evolve. That guidance
doesn't necessarily include people sitting down and operating -
-
Dr. Howard. Yes. The current guidance has all of those
issues, but I also mentioned that all of our guidance is
evolving. And so additional information may be available.
Chairwoman Adams. Thank you.
Mr. Meuser. Thanks for the answers. I yield back. Thank
you.
Chairwoman Adams. Thank you very much. Let me yield now to
the gentleman from Texas, Mr. Castro. You are recognized.
Mr. Castro. Thank you, Chairwoman, and thank you all for
your testimony today. On April 28, President Trump announced
that he would issue an executive order that would use the
Defense Production Act to force meat-packing plants to remain
open, leaving tens of thousands of workers in unsafe
conditions.
The actual executive order did not do that, because it
turns out there is no authority under the DPA to force plants
to stay open. Instead, the order left meat-packing plants
without any protection for workers, letting tens of thousands
of workers get sick, and over 20 meat-packing plants to close
down.
Ms. Sweatt, after President Trump issued his executive
order, you and Solicitor of Labor Kate O'Scannlain issued a
statement stating that before issuing citations, quote, OSHA
will take into account good-faith attempts to follow the joint
CDC/OSHA meat-processing guidance.
So my question, my first question to you is, what motivated
the issuance of this statement? Who directed you and the
Solicitor to issue it, and can you explain what you mean in the
statement by ``good-faith attempts''?
Ms. Sweatt. So to start with the good-faith effort, it is
to look at the guidance that we have issued jointly with CDC,
and we have seen employers in this area already instituting a
lot of the guidance in the information here. So there has been
some, you know, proactive measures taken. OSHA is working with
Dr. Howard's office and FSIS. We are having daily phone calls
to examine the issues surrounding what they are seeing on the
ground and what we are seeing.
We have active enforcement efforts, and we have been into
these plants for inspections, and we will continue to do that.
Mr. Castro. How many plants have you all inspected?
Ms. Sweatt. We have, I think, almost 58 meat-packing
compliance -- sorry -- enforcement activities right now. And I
think we have been into about 10 within the last week.
Mr. Castro. And there have been, in the last count I saw,
about 11,000 folks infected because of meat-packing plants.
Many folks have died. Many of the workers have died. So if an
employer shows good faith, is it the case that there will be no
OSHA citation? Is that right?
Ms. Sweatt. Well, good faith and other standards are two
different things. So I would hesitate to comment on a strawman
if you will. Enforcement is going to be based on the specifics
of what we find in a plant.
Mr. Castro. Well, I don't think it is a strawman. I mean, I
think people's lives are literally on the line. People are
getting infected here. These standards are not mandatory
standards. We can agree on that, right?
Ms. Sweatt. We have existing standards for other
activities, sanitation being one of the key, I think, in this
area. I would like to say for a moment, you know, the people
that work at OSHA are dedicated to protecting workers and
preventing illness, injury, and fatalities. So --
Mr. Castro. Well, let me -- I don't question that. Let me
ask you, do you think these standards that have been discussed
recently when the pandemic hit, do you think these standards
should be mandatory?
Ms. Sweatt. I think that what we have provided in this
guidance is a roadmap to helping protect these workers. It is
one element of the response that the government has had. CDC
and NIOSH have gone into these plants and done wall-to-wall
epidemiological surveys, and we have access to that information
as well.
And so I think there is a variety of people across the
government who are working to improve the safety and health in
these --
Mr. Castro. Well, but you have got 11,000 people that have
gotten sick. You have got a lot of people that are dead now.
The meat-packing plants, along with nursing homes and cruise
ships, have been the places where this thing has spread very
rapidly, and yet you don't believe that these standards should
be mandatory?
Ms. Sweatt. I think that people should comply with the law,
and if we can continue to put the best practices in place, we
will eventually and hopefully, you know, soon, as in tomorrow,
eradicate this problem, but it is a challenge, and our folks
continue to tackle it.
Mr. Castro. And I also think that the good-faith standard
is problematic here because can you tell me anywhere else in
the OSHA enforcement program, aside from equipment shortages,
where good faith gets an employer out of an OSHA citation?
Ms. Sweatt. I can tell you that upon implementation of the
silica standard, we implemented the good-faith policy for
approximately 30 days as employers learned and tried to figure
out how they were to comply with the new silica standard. So it
is not novel, if you will, and we have seen dramatic compliance
with silica now.
Mr. Castro. Thanks for your testimony.
The Trump Administration has been woefully inadequate in
setting standards, mandatory standards, that will save people's
lives, even as more and more people have become infected and
the President has forced these plants to stay open. And that is
an incredible failure of the Federal agencies and of the Trump
Administration. I yield back.
Chairwoman Adams. Thank you very much. We are going to
recognize now the gentleman from Kansas, Mr. Watkins. You are
recognized, sir.
Mr. Watkins. Thank you, Madam Chair, and thank you, Mr.
Byrne. Thanks to the panelists for coming today. It is my
belief and most people in eastern Kansas' belief that the
President and associated agencies have taken decisive action
amid this incredible pandemic.
And in fact, it is during this time the response warrants
not only just a whole-of-government approach but really a
whole-of-America approach, and now is the time when we should
be looking past partisan politics and come together in order to
respond in an appropriate and proportionate manner. And I
believe that largely we have done that, and I know, Dr. Howard,
you have brought up how conditions and guidance is evolving,
because we are a learning organization.
And I also know that, Ms. Sweatt, you have pointed out that
the guidance is just that, because the, you know, decision-
making authority, in my opinion, ought to be pushed down to
more local levels where it could be adopted to a community
because they can see their health situation and what applies to
them.
You know, what might be true in New York City might not be
true in Topeka, Kansas. And in fact, what might be true in
Topeka, might not be true in a small town called Iola, Kansas.
They might know how many hospitals they have, how many -- what
PPE situation is and all. And so I applaud you for your
efforts, and I know it is a very challenging time.
Ms. Sweatt, getting back to the increased number of
employers and employees who have reached out to you, has there
been any particular industry that has reached out more than the
other industries?
Ms. Sweatt. No. I would say we have seen across the board
from industries looking for information and guidance, and we
have provided as many people from the agency as possible to
talk to folks, either webinars or, you know, answering other
questions. And, you know, again, by and large, we do think that
employers are trying to do their best to respond to this. And
the agency will be there to help give them the best information
that we can.
Mr. Watkins. Thank you. And Dr. Howard, as the economy
regains its strength, you know, most of us agree that the
biggest fear and threat here is a deflationary spiral going
past these economic lines that we can't return back from.
And so obviously we want to return back to work. We all
think many of us believe that to be the best stimulus. We can't
simply just print money in hopes that saves us. And so that
makes the CDC and its guidance so incredibly, incredibly
important. Does the CDC have specific guidance for companies
that the workers aren't simply allowed to practice social
distancing perhaps by nature of how closely they are required
to stand?
Dr. Howard. Well, I think the paradigmatic type of business
that we are familiar with, having done now a number of field
investigations in these workplaces, is meat processing, where
it is extremely labor-intensive. People are shoulder to
shoulder oftentimes on these production lines. There is nothing
closer than that type of workplace.
We have also seen in nursing homes, in hospitals, you have
to be close to the patient. You can't do your work 10 feet away
from the patient. So there are a number of workplaces in which
congregate working situations are significant.
Mr. Watkins. And in eastern Kansas we have actually, in my
district, we have had a hog slaughtering business that has had
a number of cases. What should I, as a policy maker, what
should I know as I approach those business leaders?
Dr. Howard. What I would do is take a copy of the CDC/OSHA
guidance on meat and poultry processing for workers and
employers, all 10 pages. Those are our recommendations for
solving the problem.
Mr. Watkins. Excellent. And this question is generally for
both of you. Would you say that we are generally trending up or
trending down in our capacity to deal with this pandemic?
Dr. Howard. Well, if you look at the case numbers, other
than some notable hotspots, the general numbers in new cases,
day over day, as well as new fatalities day over day, are going
down. As the CDC Director has pointed out, there may be a
second wave in the fall, coupled with our normal seasonal
influenza, so we can't rest until we take care of the whole
problem.
Mr. Watkins. Thank you. That does it for my time. Thank you
for coming. I appreciate your professionalism and hard work.
Madam Chair, I yield.
Chairwoman Adams. Thank you very much. I want to recognize
the gentleman from Pennsylvania, Mr. Keller.
Mr. Keller. Thank you, Madam Chair, and I would like to
thank both our testifiers for being here today. We do know that
the job that you do is very important and appreciate the work
you do, and I know the employers that you help appreciate
keeping their employees safe.
Because as an employer myself prior to being elected to
office, I understand that the most important asset that we have
is the people that go to work every day in our businesses, and
we want to make sure they are safe.
Ms. Sweatt on May 19, OSHA updated an interim enforcement
response plan to increase the use of on-site inspections for
all types of workplaces, not just healthcare facilities and
emergency responders as OSHA had previously prioritized. Can
you explain OSHA's rationale for initially focusing on
healthcare and emergency responder cases for onsite inspection,
and why the agency is now expanding the use of onsite
inspections in other workplaces?
Ms. Sweatt. Thank you. As the pandemic began, our frontline
healthcare providers were clearly in the, you know, the most
challenging position to address the pandemic.
So we put all of our -- not all -- but we put a majority of
our resources into helping with those kinds of complaints,
working with our guidance documents to ensure respirators were
available to them.
As the pandemic has changed and as the country looks to
return to work, we thought our posture should change as well,
and so we have gone from places where employers were not
actually open, which would have also changed our resources, to
looking at where people are going to be opening and encouraging
folks to, you know, plan. And our people will be out.
We have protocol for how our inspectors will work onsite,
and our folks are to do job hazard analysis before they go do
inspections so that they can protect themselves as well.
Mr. Keller. Okay. Thank you. I appreciate that. And Dr.
Howard, I think we touched on this a little bit, but I will
just sort of say this. As the economy regains its strength,
businesses will continue to take steps to return to full
operating capacity. This could be difficult, however, because
there are areas and tasks in workplaces where social distancing
is simply not feasible. Does the CDC currently have guidance
that provides safe alternatives where social distancing is not
possible, and if not, would the agency consider providing such
guidance to employers and employees?
Dr. Howard. Yes. We have -- a lot of our guidance does
create a default physical distancing, but then when physical
distancing is not feasible, we recommend other things, such as
the wearing of cloth facial coverings.
Mr. Keller. The other question I guess I would have, as we
see and as we move forward, and as employers start to open up
their businesses and start to, you know, get to more operating
capacities and increase that, the guidance that they need, as
it is updated, how readily available, or how are we
communicating that to our employers so that they have the most
up-to-date information?
Should we find a better way to protect our employees or a
more efficient way of going about it? Is that something that is
pushed out by OSHA and CDC, or do the employers have to go
someplace to look for that?
Ms. Sweatt. Our information is available on our website,
and we have seen a dramatic increase in the use of our website
and our guidance documents. We link to a lot of CDC guidance,
but we are also using all of the social media platforms
available. So we are trying to reach as many folks as possible.
We have a newsletter that has gone from approximately 230,000
to 280,000 subscribers over the last month and a half, so I
think people are looking to the agency for information. And we
are updating it as quickly as possible when we learn of changes
or other things that we need to be doing.
Dr. Howard. I would just add, one of the other channels
that we are using are webinars that are specifically sponsored
by employer associations in particular areas.
I have done several, the Iron Workers International, for
instance, three for the National Safety Council. So webinars
are a good way to get information out and then for the
attendees to ask questions of government officials.
Mr. Keller. Yeah. I would say, as we experience things in
different parts of the country, there might be a best practice
or somebody that is -- two similar manufacturers or processors
or what have you, but somebody may have figured out a best
practice.
Are we able to share that readily across industry? Is that
something that we push out a notice to anybody? Can they sign
up for, like, an alert if something changes, or how does that
work?
Dr. Howard. Sure. And I think one of the issues is our
guidance, CDC guidance, evolves based on what we learn from
employers and workers in the particular workplace, how they are
making their workplace safer. So we include all of that
learning into our next version of guidance on the particular
industry or occupation.
Chairwoman Adams. Thank you very much. Time is up.
Mr. Keller. Thank you. I yield back.
Chairwoman Adams. Thank you.
Let me recognize the gentleman from South Dakota, Mr.
Johnson. You are recognized, sir.
Mr. Johnson. Thank you, Madam Chair. My line of questioning
will be for Dr. Howard. Dr. Howard, last month, the President
announced that CDC, OSHA, others, should do everything they can
to keep meat-packing facilities open given the critically
important role they play in the food-supply chain.
I was just hoping you could walk us through a bit what the
technical advice, guidance, and work your agency has done in
continuation of that mission?
Dr. Howard. Well, as I mentioned, we have a 10-page
guidance that we have done with OSHA, and it is really jam-
packed with a lot of very specific information for processing
in beef, pork, and chicken. One of the challenges as I have
mentioned --
Mr. Johnson. If you could highlight maybe the top two or
three best practices and findings.
I just know, particularly in South Dakota, this is an area
of high interest because of the Smithfield plant, and I think
folks watching at home on the internet, they may be interested
to know the best recommendations.
Dr. Howard. So we start out with the basic recommendation
of physical distance between employees. But as you well know,
coming from South Dakota and the Smithfield plant and other
plants like that, it is very difficult. It is a very labor-
intensive process. So what can you do in lieu of that physical
distancing? You can try to separate people. Maybe you can put a
partition between them so that they are not shoulder to
shoulder. Or you can protect their breathing zone by the use of
a cloth face mask with a face shield, et cetera.
One of the things that we have noticed in these plants, and
I will mention this because to me it is a very important best
practice, these plants are very, very noisy. And one of the
things we have seen, even if you keep individuals separated as
much as you can and you keep a cloth face mask and a shield,
they sometimes have to speak to each other or a supervisor and
off comes the shield, down comes the mask, and they are
shouting at each other, you know, mouth to ear.
That kind of interaction is a possible transmissive event.
So if we can prevent that from happening, that is a best
practice that we think would really help. It is not one that a
lot of people know about because people are more knowledgeable
about separating the line in terms of employees.
The other thing is ventilation in the workplace to make
sure that you are moving a lot of air. In a workplace like
these plants, you know, the temperature is kept very low, which
actually helps the virus. So it is a challenge. The
temperatures are low because of food safety issues.
So each time you look at one of these best practices, you
have to put it into the context of the production facility
itself. It is a very challenging thing for us to make
recommendations and to get them to be feasible, technically,
within that workplace, a very challenging thing.
Mr. Johnson. I mean every relocation, obviously, is
different. I mean, we talk a bit about the role of the screens
as people go into the workplace. The last time I was at
Smithfield, I examined the -- what appeared to be rather
rigorous process they have for people to get into the plant
with temperature checks and screening questions. Has that
proven to be effective? Is that a key best practice?
Dr. Howard. Sure. When you look at the hierarchy of
controls, the first step is hazard elimination. Well, the
hazard is actually the virus. It just happens to be carried
along by people who may not know they are infected. They may be
asymptomatic. Or they may have a little fever, but a lot of
people don't really notice they have a fever.
So those checks prior to entry: Do you have any symptoms?
Symptom questioning. Are you around somebody? Have you been in
contact with anybody who has Covid-19? The issue about doing a
temperature check. And then some companies are starting actual
testing. But testing for the virus is only a snapshot in time.
It is not -- it is not the -- it doesn't answer the whole thing
as you go through time. It gives sometimes workers a false
sense of security.
So together with those entry checks, then you go into the
workplace and you look at engineering controls, administrative
controls, and PPE, if necessary.
Mr. Johnson. So obviously, humankind is very good at
fighting the last battle. And it does seem that there is high
awareness, and packing plants are on high alert. But that is
obviously not the only critical portion of the food supply
chain. What is the next place? What is the next weakness within
the food supply chain that we should be attuned to?
Dr. Howard. Well, when you look at the food when it gets to
the grocery store and the interaction in that setting, not
between workers, between workers and their customer -- and
oftentimes you see now the same kind of physical distancing,
engineering controls happening with Plexiglas between the clerk
and the customer.
So we are seeing the same fundamental principal, i.e.,
physical distancing being used in a lot of creative ways
depending on the specific workplace that you are in.
Mr. Johnson. Thank you, Dr. Howard.
And thank you, Madam Chair.
Chairwoman Adams. Thank you very much.
I want to remind my colleagues -- let me thank the
witnesses very much -- I want to remind my colleagues that
pursuant to Committee practice, materials for submission for
the hearing record must be submitted to the Committee Clerk
within 14 days following the last day of the hearing. So by the
close of business on June 10, preferably Microsoft Word format.
The materials submitted must address the subject matter of
the hearing. Only a Member of the Subcommittee or an invited
witness may submit materials for inclusion in the record.
Documents are limited to 50 pages. Documents longer than 50
pages will be incorporated into the record via an internet link
that you must provide to the Clerk within the required time
frame. But recognize that years from now, that link may no
longer work.
Pursuant to House Resolution 965 and the accompanying
regulations, items for the record should be submitted
electronically by emailing submissions to
[email protected]. Member offices are
encouraged to submit materials to the inbox before the hearing
or during the hearing.
At the time the Member makes the request, the record will
remain open for 14 days for Committee practice for additional
submissions after the hearing.
Again, I want to thank the witnesses for your participation
today. What we have heard is very troubling. Members of the
Subcommittee may have some additional questions for you, and we
ask the witnesses to please respond to the questions in
writing.
The hearing record will be open -- held open for 14 days in
order to receive, receive those responses.
I want to remind my colleagues that pursuant to Committee
practice, witness questions for the hearing record must be
submitted to the Majority Committee staff or Committee Clerk
within 7 days. The questions submitted must address the subject
matter of the hearing.
I now want to recognize the distinguished Ranking Member
for his closing statements.
Mr. Byrne. Thank you, Madam Chair. Before I get started, I
ask unanimous consent to place in the record letters from the
American Hospital Association, The Coalition for Workplace
Safety with 58 additional organizations, and the National
Association of Manufacturers providing their views on today's
hearing topic.
Chairwoman Adams. So ordered.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Byrne. Thank you.
I want to thank the witnesses. That was outstanding. You
provided this Committee and the public with an enormous amount
of very important information, and we are grateful to you for
it.
Sometimes you were asked questions and said it is a yes or
no, unfortunately, this topic does not lend itself to a lot of
just simple yes or no answers.
A lot of Members said that this is very important. And they
are right. This is extremely important. And that is why 20 of
us -- I am updating my count from my opening -- 20 of us
decided to be here in person, 13 Republicans and 7 Democrats.
We felt strongly enough about it to be here in person. But so
did millions of Americans today show up for work and do their
jobs in person, because that is what we are supposed to do.
When I started preparing for this hearing, I have looked at
it from a point of view from my prior life as a lawyer
representing employers that have to comply with OSHA law. And
so I said, okay, if one of my clients called me, what kind of
advice would I give them? So I went online to see what you guys
had put out. And it took me a long time because you have put
out a lot of stuff.
The benefit of that to both the employers and employees is
this. This is a confusing time. And just getting good quality
information is about 99 percent of what we need to do. And good
quality information hasn't been exactly easy to come by in this
environment.
So the guidance you have put out has been extraordinarily
important to employers trying to comply with the law, but more
importantly do what they want to do which is to protect their
employees. And you have given that to them. And you are working
with them to help them to understand it.
The experts have sort of been all over the place about this
disease. Early on, oh, it is not a big problem. Oh, no, now it
is a big problem. Early on, don't wear a face mask. Now you are
supposed to wear a face mask. We got some experts saying today
we shouldn't have shut down. The other experts saying we had to
shut down.
So it has been difficult for all of us to try to figure
out, all right, what should we do? And what you all have tried
to do and have done, I believe, is work through this in good
faith to try to distill this down, understand it for the rest
of us so that we can implement it. And I know it is a changing
situation. So you are going to have to change your guidance as
we go along. And I appreciate that about what you are doing.
We made some mistakes in Washington. Some of the stuff we
have done has gone too far, and we have hurt our economy. But
we based it on the advice we had at the time from public health
experts who were dealing with limited information on their
part. Some of the projections we got were wildly off the mark.
And we are just having to deal with it as best we can.
I don't see how it helps anything for us to turn to you
guys, who have this very important obligation in this very
difficult time, to keep the workplace safe, for us to say stop
and go through all of the legal mumbo jumbo of doing the
standard.
There is a difference between keeping people safe and
issuing a standard. Issuing a standard in and of itself doesn't
keep anybody safe. We have a standard right now, it is called
general duty clause. Every employer in America has an
obligation under the OSHA general duty clause to keep their
workplaces safe. There is no question about that.
The questions on this environment, what is that duty? The
guidance helps describe the duty. And if enforcement is
necessary, you use the guidance to determine this employer did
not comply with the general duty clause.
When I saw the AFL-CIO filed the lawsuit, I was really
disappointed. If there ever was a time for us not to be filing
frivolous lawsuits, this would be it. Particularly, a lawsuit
against the very departments of the government that we rely
upon to keep the workplace safe. We don't need you to be taking
time off from that job of keeping the workplace safe, to go
sitting down with a bunch of lawyers, and trying to decide what
we got to do to respond to this lawsuit. That is inhibiting
workplace safety, not helping it.
And here in Congress, we passed a bill out of the House a
couple of weeks ago -- it is not going anywhere, it is not even
going to be taken up in the Senate because of the way it was
done and because it has got stuff in it that is just not
acceptable -- but it attempted to deal with this issue, and not
once do we have a hearing on it in this Committee, the
Committee of jurisdiction, not once did we bring that bill in
this Committee to have a markup, the Committee of jurisdiction
on that topic, not once. If this is so important, why didn't we
do it before we passed the bill?
Look, we have worked together in this Congress on this
disease. We passed almost $3 trillion in spending bills in a
very short period of time with huge bipartisan majorities. That
is the only way to act in this situation is with a bipartisan
commitment to the American people. We need to work together.
Like our constituents are having to do.
We shouldn't be having partisan hearings. We should show up
for work like our constituents do. We should take this
seriously, like our constituents do. And we should understand
at the end of the day, it is all of our job to work for a safe
workplace.
What I said before, the most important part of the American
economy, the working men and women of the United States of
America. Thank you for what you do every day. We are grateful
to you. We are grateful for your presence.
And with that, Madam Chairwoman, I yield back.
Chairwoman Adams. Thank you, Mr. Byrne.
I now recognize myself for the purpose of making my closing
statement. I want to again thank Deputy Assistant Secretary
Sweatt and Director Howard both for joining us for this
important discussion. I want to thank all of my colleagues who
have been here today, those who are physically here, and those
who are virtually here.
I do want to emphasize that the ETS and The Heroes Act is
not a rigid or inflexible one-size-fits-all standard that fails
to accommodate changing scientific knowledge.
The text of The Heroes Act calls for an ETS to require an
infection control plan based on the hazards in that specific
workplace. It requires assessment of risks in that workplace
and a plan tailored to the particular workplace. The
development of the plan should involve employees. This is not a
required rigid standard.
Second, California OSHA has an airborne transmissible
standard. It applies to Covid and healthcare and has not been a
one-size-fits-all.
Let me just say that what we heard today is that in the
middle of this global health emergency that is causing more
deaths in less time than any other workplace crisis that OSHA
has faced in its 50-year existence, OSHA stubbornly refuses to
use its authority to protect this Nation's workers.
The failure to act is a stunning act of abdication by the
senior leaders in the Department of Labor. When workers are
demanding strong standards and enforcement of those standards.
Instead, we get voluntary guidance that employers can choose to
comply with if it is convenient. And the best OSHA can offer is
threats to use a largely toothless general duty clause.
When OSHA inspections do occur, they happen too often after
the bodies are in the morgue, rather than when the prevention
can make a difference. When employers need clear standards so
that they know when they have met their obligation to make
their workplaces safe, instead they get vague, generic
suggestions. This is not how the architects of the Occupational
Safety and Health Act envisioned OSHA's response during a
workplace crisis.
The Act tells us that OSHA shall issue an Emergency
Temporary Standard if it determines that workers are exposed to
a grave danger or from new hazards, and that a standard is
necessary to protect workers from that hazard.
Not only do the large numbers of sick and dying tell us
that there is a grave danger, but it is clear that the limited
actions taken by OSHA are not sufficient. Not only is OSHA
refusing to act on the emergency authority, but the agency
won't even resume work on a large awaited permanent standard
that would address the hazard that this Nation is facing.
So as the economy reopens, the key to preventing an even
more devastating second wave will be protecting workers and the
millions of workplaces that present exposure hazards. Yet, we
have no mandatory standard, no cop on the beat to enforce safe
working conditions that will be the key to preventing that
second wave.
And it is deeply disappointing that OSHA, the only Federal
agency with the authority to enforce safe working conditions,
is missing in action. And I am not only disappointed, but I am
saddened for the workers of this country who continue to lack
adequate protections on the job, and when they go home, they
will infect their families. And I am upset about the future of
this country that OSHA's inaction foreshadows.
And I can only hope that you and Secretary Scalia will wake
up before it is too late and choose to fulfill OSHA's mission
to assure safe working conditions for every man and for every
woman in this country.
If there is no further business or without objection, the
Committee stands adjourned.
Thank you.
[Additional submissions by Chairwoman Adams follow:]
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[Additional submission by Mr. Byrne follows:]
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[Questions submitted for the record and their responses
follow:]
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[Whereupon, at 1:34 p.m., the subcommittee was adjourned.]
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