By Eric J. Conn and Mark M. Trapp

When the Trump Administration’s OSHA declined repeatedly to issue a COVID-19 emergency temporary standard and otherwise favored issuing guidance over citations, the agency faced a series of lawsuits and legal challenges from worker advocacy groups and national unions.  OSHA prevailed in those actions, retaining its primacy and exclusive authority to make workplace safety enforcement decisions.  But in the wake of those failed legal challenges, pro-labor advocates and Democratic politicians and policymakers have begun a serious push to establish a private right of action for employees and their representatives under the Occupational Safety and Health Act.

For example, in July of 2020, the Center for Progressive Reform (CPR), a left-leaning think tank focused on advancing policies to address health and well-being of workers and others, issued a report calling on Congress to legislate a private right of action for employees about workers safety conditions. The purpose of CPR’s policy proposal is explained this way:

OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace. . . .  [I]t is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority.

The National Council for Occupational Safety and Health (COSH) similarly called on the Biden Administration to support a private right of action in the OSH Act, specifically by incorporating such a measure into a version of the Protecting America’s Workers Act (PAWA).  PAWA is a piece of OSH Reform legislation that has been introduced and reintroduced in each Congress for decades, but it typically does not receive enough support or advance beyond referral to the House Committee on Education and Labor and the Senate Committee on Health, Education, Labor and Pensions. On February 7, 2021, Congressman Joe Courtney (D-Conn.) introduced House Resolution 1074, the latest version of PAWA.

Among other measures, CPR and COSH call for legislation that would:

• Incentivize workers to speak up by creating a “bounty provision” that pays workers 30% of civil penalties recovered, with 70% paid directly to OSHA;
• Ensure attorneys will represent workers in litigation by guaranteeing the recovery of attorney’s fees in successful cases;
• “Modernize” whistleblower protections;
• Ban mandatory arbitration as a condition of employment so that workers have guaranteed access to the courts;
• Expand the OSH Act’s coverage to workers currently exempt from the law; and
• Expand coverage to all workers in states that operate their own health and safety plans by requiring those states to incorporate the private right of action into their programs.

For more information on the pressure campaign being put on the Biden Administration to establish an OSHA-related private right of action, check out this full Legal Opinion article that Conn Maciel Carey prepared with the Washington Legal Foundation.