Occupational Safety and Health, Essential Workers, and the Covid-19 Pandemic in the U.S. - Report to the International Labour Organization

Abstract

This Report on the U.S. occupational safety and health response to the pandemic was prepared at the request of the International Labour Organization as part of the ILO review of the protections provided to workers on the frontline of the pandemic in multiple countries. As requested by the ILO, the Report provides an overview of U.S. occupational safety and health and related law; traces the effects of the pandemic on workers in the U.S.; reviews the federal agencies’ responses to the risk of COVID-19 within workplaces; explores the variability among state responses to the occupational health threats; provides a summary of COVID-related workplace litigation, including novel legal theories that relied on public nuisance and common law health and safety doctrine; and briefly outlines the social and economic supports provided to workers in the U.S. before and then during the pandemic. The Report concludes with an analysis of the shortcomings of the U.S. response, including underlying problems of state variability, lack of overall protection of employee voice, a weak overall public health system and an overly bureaucratized federal system of occupational safety and health regulation. The Report was provided to the ILO in April 2022 and the status of litigation and public health orders was updated through March 31, 2023. It is circulated with permission of the ILO. Findings from this Report have been incorporated into a broader analysis. See Sean Cooney, Olivia de Quintana Figueiredo Pasqualeto, Tzvetomira Radoslavova, Emily Spieler, Iván Williams Jiménez, OSH AND THE COVID-19 PANDEMIC: A LEGAL ANALYSIS, ILO Working Paper No. 90 (March 2023), https://www.ilo.org/wcmsp5/groups/public/---dgreports/---inst/documents/publication/wcms_871987.pdf and separately posted on SSRN.

Keywords: COVID, pandemic, occupational safety and health, worker protection, employment law, labor law