Heather Long and
April 10, 2020 at 1:14 p.m. EDT
The Labor Department is facing growing criticism over its response to the coronavirus pandemic as the agency plays a central role in ensuring that the tens of millions of workers affected by the crisis get assistance.
The criticism ranges from direct actions that the agency has taken to limit the scope of worker assistance programs to concerns that it has not been aggressive enough about protecting workers from health risks or supporting states scrambling to deliver billions in new aid.
In recent days, Labor Secretary Eugene Scalia, who has expressed concerns about unemployment insurance being too generous, has used his department's authority over new laws enacted by Congress to limit who qualifies for joblessness assistance and to make it easier for small businesses not to pay family leave benefits. The new rules make it more difficult for gig workers such as Uber and Lyft drivers to get benefits, while making it easier for some companies to avoid paying their workers coronavirus-related sick and family leave.
"The Labor Department chose the narrowest possible definition of who qualifies for pandemic unemployment assistance," said Andrew Stettner, a senior fellow at the Century Foundation who has spent two decades working on unemployment programs.
At the same time, frustrations have built among career staff at the Labor Department that the agency hasn't ordered employers to follow safeguards, including the wearing of masks, recommended by the Centers for Disease Control and Prevention to protect workers. Two draft guidance documents written by officials at the Occupational Safety and Health Administration, part of the Labor Department, to strengthen protections for health-care workers have also not been advanced, according to two people with knowledge of the regulations granted anonymity to discuss the internal deliberations.
Scalia, a longtime corporate lawyer who is the son of the late Supreme Court justice Antonin Scalia, has emerged as a critical player in the government's economic response to the pandemic. Nearly 17 million Americans have applied for unemployment insurance since President Trump declared a national emergency on March 13, and states are struggling to get their systems working to deliver $260 billion in new aid approved by Congress.
Democrats and some Republicans argue that the Labor Department needs to be more aggressive about disbursing money and technical assistance to states to shore up the unemployment insurance system. The department has released only half of $1 billion in administrative support for states that Congress approved almost a month ago.
Sen. Lindsay O. Graham (R-S.C.) said Thursday in an interview that he has talked to Scalia about the need to speed things up.
"You could have massive civil unrest if these systems cannot get checks out the door. We're talking about 20 percent unemployment, maybe even more," Graham said. "The application process is a nightmare. The state systems are failing."
Graham said that Scalia has been responsive, but, "I don't see any action being taken."
Labor Department officials said Scalia is moving rapidly to help U.S. workers in an unprecedented time. They pointed to a poster and guidebook that OSHA released with steps companies "can take" to reduce worker risk of coronavirus exposure.
"Under Secretary Scalia's leadership, in the last two weeks, the department has quickly released new rules and guidance for states, businesses, and individual Americans to help those in need of relief," said Patrick Pizzella, deputy labor secretary. "The department has already distributed nearly $500 million in additional administrative funding to 39 states."
Still, Scalia has made clear he is wary of taking an excessively lax approach to disbursing aid, an argument that he used to help win GOP support for recent legislation. Writing on Fox Business Network's website on Monday, he warned that he does not want unemployed people to become addicted to government aid.
"We want workers to work, not to become dependent on the unemployment system," Scalia wrote with Small Business Administration chief Jovita Carranza. "Unemployment is not the preferred outcome when government stay-at-home orders force temporary business shutdowns."
On the day the $2 trillion package passed the Senate, Scalia spoke with Sens. Rob Portman (R-Ohio), Ben Sasse (R-Neb.) and Tim Scott (R-S.C.), who had raised concerns the law's new unemployment benefits were too large and would deter workers from returning to jobs.
Scalia told conservative senators that once enacted, his agency would ensure the provisions his agency oversees would not hurt U.S. companies, according to three congressional officials aware of the conversations and granted anonymity to discuss the call.
Two recent laws passed by Congress expanded paid and sick leave policies as well as the size and scope of unemployment benefits for Americans. But worker advocates argue that as Scalia begins to implement these measures, his department is being much less generous toward workers than toward companies.
New Labor Department guidance says unemployment benefits apply to gig workers only if they are "forced to suspend operations," which could dramatically limit options for those workers if their apps are still operating. Other workers also face a high hurdle to qualify for benefits.
The guidance says a worker "may be able to return to his or her place of employment within two weeks" of quarantining, and parents forced to stop work to care for kids after schools closed are not eligible for unemployment after the school year is over. Workers who stay home because they are older or in another high-risk group are also ineligible unless they can prove a medical professional advised them to stop working.
Some states are also having a difficult time figuring out how to verify how much money self-employed workers typically earn. It might require looking at tax documents, which unemployment offices don't usually have access to.
"Some of the requirements, the standards that we're being held to, are going to be incredibly difficult to adhere to," Maine Labor Commissioner Laura Fortman said.
A Labor Department spokesperson said the agency is "providing as much technical assistance and IT support as possible" to states, some of which are using computer systems that are several decades old.
Scalia's agency is also in charge of overseeing the new paid sick and family leave regulations, which apply to companies with fewer than 500 employees during the pandemic. The law gave the Labor Department authority to exempt businesses with under 50 employees from providing 12 weeks of paid family leave to care for a child out of school if the leave policy threatens to bankrupt the company.
Businesses that deny workers paid leave don't have to send the government any paperwork justifying why. The Labor Department's guidance asks companies to "retain such records for its own files," a contrast with the heavy documentation required from gig workers who must prove they were affected by the coronavirus outbreak to get aid.
A Labor Department spokesperson said its rules on paid sick and family leave follow Congress' direction.
"The department's new rule balances allowing workers to take paid leave to care for their children with keeping small businesses open - as instructed by Congress," a spokesperson said.
Tension at OSHA
Some Labor Department staffers and outside critics have also faulted Scalia for his handling of OSHA, which falls under his jurisdiction.
The CDC has issued recommendations for the public and businesses to follow practices such as social distancing and sanitizing workstations. OSHA could make those guidelines mandatory for all employers or for all essential employees but has not done so.
"Some of the OSHA staff is frustrated they can't do more to protect workers. They want an emergency standard that would require employers to follow CDC guidelines," said David Michaels, a George Washington University School of Public Health professor who served as assistant secretary of labor for occupational safety and health under the Obama administration.
Under Scalia, OSHA has also decided against issuing safety requirements to protect hospital and health-care workers, including rules that would mandate nurses and other providers be given masks and protective gear recommended by the CDC when at risk of exposure.
The union National Nurses United petitioned Scalia to increase the requirements during the pandemic, but a union spokeswoman said the Labor Department has not even acknowledged receipt of the letter.
Hospitals have resisted these rules for years. Tom Nickels, the chief lobbyist for the American Hospital Association, said that he hadn't spoken to Scalia but that his group has opposed these actions in conversations with OSHA staff because widening the use of N95 respirator masks would be impractical. "The equipment is in short supply," he said. "We can't get it."
OSHA also has not taken significant action to protect workers from retaliation when they speak out about dangerous conditions that expose them to coronavirus, Michaels said.
When workers at a manufacturing plant in northern Illinois tried alerting government officials about their concerns about working shoulder to shoulder, the regional OSHA official responded that "all OSHA can do is contact an employer and send an advisory letter outlining the recommended protective measures," according to an email reviewed by The Washington Post. "This isn't very helpful for you or your labor group, but it is the best I have to offer," the email said.
On Wednesday, OSHA sent out a news release reminding companies that it is "illegal to retaliate against workers because they report unsafe and unhealthful working conditions during the coronavirus pandemic."
"OSHA has completely abandoned their responsibility to protect workers on the job," said Debbie Berkowitz, who worked at OSHA in the Obama administration and is now director of the worker safety and health program at the National Employment Law Project. "I have never felt this way, that every worker is at the mercy at their boss of whether they get protected. People are going to get sick and die, and they don't have to."
This week, Scalia said OSHA would take all worker safety concerns seriously.
"We are fielding calls from workers worried about their health and from workers who believe they have been illegally disciplined by their employer for expressing health concerns," he said. "We will not tolerate retaliation."
Staff writer Amy Goldenstein contributed to this report.