On January 21, 2021, President Biden instructed the U.S. Occupational and Health Administration (OSHA) to analyze the need for Emergency Temporary Standards (ETS) to protect workers during the COVID-19 pandemic and give its recommendations by March 15th, 2021. On June 10th, almost three months later than expected — and after more than a year since the pandemic started –, OSHA finally issued an ETS that applies only to healthcare workers.
Centro de los Derechos del Migrante, Inc (CDM) celebrates the protection of our healthcare workers; however, we are disappointed by the exclusion of the vast majority of workers, especially frontline workers from other industries with documented high infection and mortality rates where Black, Indigenous and Latinx workers are disproportionately represented, such as protein-processing industries.
Let us not forget that the pandemic is still not under control and is far from over. The stalling vaccine rates, the increasing COVID-19 variants, and the future need for booster shots indicate that the need for enforceable protective measures to cover all workers is of the utmost importance and as relevant as ever.
OSHA must give special consideration to migrant workers with temporary H-2A and H-2B visas working in essential industries who are more vulnerable to illness and abuse without an enforceable standard. Cramped living conditions, overcrowded transportation services and laboring in close quarters make these workers more prone to infection. Migrant workers often lack access to vaccines in their home communities as well as information about their right to vaccines and healthcare once they arrive in the United States.
The case of Maribel Hernández and Reyna Álvarez, whom CDM represented in a whistleblower complaint filed in June of last year, is a stark reminder of what is at stake for migrant workers. These two migrant women worked at a crawfish plant on H-2B visas during the COVID-19 pandemic and got sick along with about 100 other workers, due to the lack of protective measures. They lost their jobs, housing and immigration status for seeking medical attention. Unfortunately, OSHA dismissed their whistleblower complaint in December of 2020. Now, without an ETS to protect workers like Maribel and Reyna, we can expect that even more protein processing workers and migrant workers will become infected with COVID-19 at their places of employment.
The Department of Labor (DOL) recently issued federal regulations under the expanded H-2B program which requires employers to provide notice to migrant workers about their right to access vaccines. This measure is a far cry from a comprehensive safety and health standard designed to protect all frontline workers from COVID-19 since many migrant workers labor in isolation, they lack means of transportation and often face language barriers to understand the information provided.
In addition to the ETS, OSHA’s updated Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace for all other industries comes up short. These recommendations are extremely cursory with regards to protein-processing workers or migrant workers, two groups that are most vulnerable to the virus. Sadly, this guidance does not provide the force of law and does not protect workers the way that an ETS would have.
The COVID-19 pandemic is still not over — all workers have the right to a safe and healthy work environment. By narrowing the ETS to healthcare workers, OSHA has wasted a valuable opportunity to protect workers and save lives.
OSHA has gone astray in its mission by failing to issue a comprehensive ETS. Now, the agency must implement a permanent infectious disease standard that protects all workers from diseases in the workplace during the pandemic and beyond.