This op-ed was originally published in The Regulatory Review. Reprinted with permission.
"I'm not convinced it's real. I think it's nothing more than the flu. If I die from the virus, it was just meant to be," Thomas Seale, an attendee at the Sturgis Motorcycle rally, reportedly said of COVID-19.
An estimated 460,000 people who love motorcycle culture and the company of like-minded people attended the huge rally in Sturgis, South Dakota, population 7,000, for 10 days in August 2020. They rode around, had races, attended bike shows and concerts, and drank beer. Face masks were rare.
People told New York Times reporter Mark Walker about the core importance of the event: they met their spouses at earlier rallies, referred to their fellow participants as family, or had attended the rally for decades. When asked about the pandemic, the attendees explained they were not concerned enough to stay away or wear a mask, either because they did not believe that the virus was serious or they thought that if they got the disease, that outcome was intended.
As the country prays for relief from the global pandemic, what have we learned that could help us protect the environment better? Most alarming, I would argue, are COVID-19's revelations about the power of conspiracy theories and the antipathy they generate toward scientific experts.
Take "America's Doctor" and the dark rumors percolating on right-wing websites. Anthony Fauci is a "Deep-State Hillary Clinton-loving stooge." He was paid off to the tune of $100 million by Bill Gates, who has invested heavily in the development of vaccines for COVID-19 and corruptly opposes chloroquine, a life-saving cure. The genesis of the pandemic was a Chinese virology lab, where scientists deliberately created …
In the absence of meaningful action by the federal Occupational Safety and Health Administration (OSHA), more than a dozen states, including Virginia, have issued emergency safety measures to protect essential workers from the risks of COVID-19. But Maryland – home to one of the largest poultry industries in the nation – is glaringly absent from that list.
We’ve seen dramatic changes in response to the coronavirus in the transportation, retail, and restaurant industries, but behind the closed doors at poultry plants, workers face dire health risks while continuing to labor in fear of contracting COVID-19.
Prior to the pandemic, workers in the poultry industry faced some fairly egregious working conditions. Inside plants, workers labor side-by-side while as many as 175 birds whizz by every minute for "processing." Painful repetitive stress injuries and cuts due to increased line speeds are all too common at these processing facilities. Reports …
This post was originally published on Legal Planet. Reprinted with permission.
The response to the COVID-19 pandemic has driven home some lessons about governance. Those lessons have broader application — for instance, to climate governance. We can't afford for the federal government to flunk Crisis Management 101 again.
Here are five key lessons:
Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts.
OSHA has so far declined to adopt an emergency standard to address COVID-19, despite repeated calls by unions, workers, and advocates to do so. Moreover, rather than enforcing existing standards or holding employers accountable for violating their general duty …
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:
More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …
Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.”
The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.
As the letter explains, the federal liability shield would violate clear principles of federalism by intruding upon the traditional rights …
Nine months ago, residents of the Chicago suburb of Willowbrook, Illinois, scored a major victory in their fight to prevent emissions of a dangerous gas, ethylene oxide, into the air they breathe. In fact, their victory appeared to have ripple effects in other communities. But like so many other aspects of life in the midst of a pandemic, things changed in a hurry.
The U.S. Environmental Protection Agency (EPA) classified ethylene oxide, or EtO, as a human carcinogen in December 2016. According to the agency, exposure via inhalation increases the likelihood of developing certain cancers and other respiratory and neurological ailments. EPA has not established a reference dose, or maximum acceptable dose, for EtO, but the U.S. Agency for Toxic Substances and Disease Registry’s (ATSDR) Cancer Risk Evaluation Guide (CREG) estimates concentrations of a carcinogen at which there is an elevated risk of one …
Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.
Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all.
For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Those experts' work set American workers' compensation baselines. The oddity is that while Europeans moved on to universal benefit systems, we continue to use their 19th century work-injury system. (I write about these developments here). Additionally, the United States briefly flirted …
Governments and industries are "reopening" the economy while COVID-19 continues to rage across the United States. At the same time, the lack of effective, enforceable workplace health and safety standards puts workers and the general public at heightened risk of contracting the deadly virus. In a new report from the Center for Progressive Reform, Sidney Shapiro, Michael Duff, and I examine the threats, highlight industries at greatest risk, and offer recommendations to federal and state governments to better protect workers and the public.
In many essential industries, the coronavirus risk is particularly acute because of the nature of the work and of the workplaces in which it is conducted. The lack of enforceable, pandemic-specific protections for workers and the hodgepodge of industry responses heighten this danger to workers. Industries affected range from health care to meatpacking, transportation to warehousing.
Heaping injustice on top of danger, coronavirus-related hazards …