COVID-19: To Protect Mission Critical Workers, OSHA Could Leverage Inspection Collaboration Opportunities with External Federal Agencies
Summary
A U.S. Department of Labor Office of Inspector General audit report to the Occupational Safety and Health Administration, Report Number 19-22-003-10-105, issued March 31, 2022. The OIG found that OSHA had not collaborated with external federal agencies' enforcement or oversight personnel to help safeguard mission critical U.S. workers during the pandemic. It states that despite receiving 15 percent more complaints in 2020 than in 2019, OSHA conducted 50 percent fewer inspections, leaving employees vulnerable to COVID-19 as a workplace hazard, and notes OSHA's historically low number of compliance safety and health officers.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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REPORT TO THE OCCUPATIONAL
SAFETY AND HEALTH
ADMINISTRATION
COVID-19: TO PROTECT MISSION
CRITICAL WORKERS, OSHA COULD
LEVERAGE INSPECTION
COLLABORATION OPPORTUNITIES
WITH EXTERNAL FEDERAL AGENCIES
DATE ISSUED: MARCH 31, 2022
REPORT NUMBER: 19-22-003-10-105
U.S. Department of Labor WHAT OIG FOUND
Office of Inspector General
Audit OSHA had not collaborated with external
federal agencies’ enforcement or oversight
personnel to help safeguard mission critical
U.S. workers during the pandemic.
BRIEFLY… From the onset of the pandemic, OSHA
received a sudden influx of complaints.
COVID-19: TO PROTECT MISSION However, in order to reduce person-to-person
CRITICAL WORKERS, OSHA COULD contact for its own personnel, the agency
LEVERAGE INSPECTION decreased the number of its inspections,
COLLABORATION OPPORTUNITIES particularly onsite inspections. Despite
WITH EXTERNAL FEDERAL AGENCIES receiving 15 percent more complaints in 2020
than in 2019, OSHA conducted 50 percent
March 31, 2022 fewer inspections. This meant leaving
employees vulnerable to COVID-19 as a
WHY OIG CONDUCTED THE AUDIT workplace hazard.
While playing a critical role in the mission to With an already historically low number of
ensure safe and healthful work environments, CSHOs and a growing number of worksites to
the Occupational Safety and Health inspect, enhanced collaboration between OSHA
Administration’s (OSHA) corps of Compliance and external federal agencies with enforcement
Safety and Health Officers (CSHO) declined personnel on site in high-risk COVID-19
over the last decade as the number of industries could have better protected workers.
businesses increased. The COVID-19
pandemic further tested CSHO inspection and Instead, OSHA neither tracked nor analyzed
oversight capabilities when industries with high inspection-related referrals made by external
risk of exposure continued operating with federal agencies to determine if those agencies
employees on site. Given the resource were regularly referring potential hazards; and if
constraint with CSHOs, this was an opportunity not, OSHA did not gauge their related outreach
for OSHA to realize collaborative potential with and training needs. It also did not have up-to-
other federal agencies’ enforcement and date agreements with federal counterparts
oversight personnel to help protect workers conducting enforcement or oversight activities
from the contagion and prevent them from during the pandemic that would have enabled
becoming casualties of the virus. OSHA to capitalize on collaborative efforts. By
not identifying federal partners in a position to
WHAT OIG DID assist during a large-scale safety and health
crisis and not having or creating collaborative
We conducted this performance audit to answer agreements with those partners, OSHA lost a
the following question: valuable opportunity to better protect U.S.
workers.
To what extent did OSHA collaborate
with external federal agencies’ WHAT OIG RECOMMENDED
enforcement or oversight personnel to
help safeguard U.S. workers during the We made two recommendations to OSHA to
pandemic? establish interagency collaboration by devising a
plan containing training and outreach, and using
We interviewed OSHA and other agency memoranda of understanding or other written
officials, analyzed OSHA's referral data, and agreements.
reviewed information about high-risk industries,
memoranda related to interagency READ THE FULL REPORT
collaboration, and public laws and regulations. http://www.oig.dol.gov/public/reports/oa/2022/1
9-22-003-10-105.pdf
U.S. Department of Labor – Office of Inspector General
TABLE OF CONTENTS
INSPECTOR GENERAL’S REPORT .................................................................... 1
RESULTS ............................................................................................................. 2
OSHA Did Not Collaborate to Enhance Its Enforcement and
Oversight Activities to Help Safeguard Mission Critical Workers
During the Pandemic .................................................................................. 4
OIG’S RECOMMENDATIONS ............................................................................ 17
Summary of OSHA’s Response ............................................................... 18
APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA .................................... 20
APPENDIX B: AGENCY’S RESPONSE TO THE REPORT ............................... 23
APPENDIX C: ACKNOWLEDGEMENTS ........................................................... 27
-i-
U.S. Department of Labor Office of Inspector General
Washington, D.C. 20210
INSPECTOR GENERAL’S REPORT
Douglas L. Parker
Assistant Secretary of Labor
for Occupational Safety and Health
U.S. Department of Labor
200 Constitution Ave. NW
Washington, DC 20210
The Office of Inspector General (OIG) conducted a performance audit of the
Occupational Safety and Health Administration’s (OSHA) collaborative efforts
with external federal agencies’ enforcement or oversight personnel to help
safeguard U.S. workers during a pandemic.
On March 13, 2020, by Proclamation 9994, the President declared a national
emergency concerning the coronavirus (COVID-19) outbreak. Nearly two years
later, the COVID-19 pandemic continues to pose a significant risk to U.S. public
health and safety. Since the start of the pandemic, the U.S. has reported more
than 67 million COVID-19 infections and over 853,000 related deaths. 1
While the COVID-19 outbreak resulted in many workplaces closing down and a
sudden increase in telework, certain businesses continued their operations with
mission critical employees reporting to their worksites, as they could not
telework. Such employees worked in industries with some of the highest risks of
COVID-19 exposure, including meat processing plants, nursing homes, hospitals,
grocery stores, restaurants, department stores, and correctional institutions.
More than one million mission critical workers became infected with COVID-19
and in some cases, did not survive.
OSHA's mission is to ensure employees work in a safe and healthful environment
by setting and enforcing standards and by providing training, outreach,
education, and assistance. However, over the past decade the number of OSHA
1
Cases and deaths reported as of January 19, 2022, on CDC’s COVID Data Tracker.
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U.S. Department of Labor – Office of Inspector General
Compliance Safety and Health Officers (CSHO) has decreased while business
establishments increased. Therefore, OSHA collaboration with external federal
agencies’ enforcement or oversight personnel to supplement its reduced
inspection resources may better protect U.S. workers, especially during a
pandemic.
Accordingly, we conducted an audit to answer the following question:
To what extent did OSHA collaborate with external federal agencies’
enforcement or oversight personnel to help safeguard U.S. workers during
the pandemic?
We determined OSHA had not collaborated with external federal agencies’
enforcement or oversight personnel to help safeguard mission critical U.S
workers during the COVID-19 pandemic.
We conducted our audit work from October 29, 2020, through January 19, 2022.
OSHA provided referral data from February 1, 2020, to November 17, 2020. We
obtained and reviewed OSHA’s Memoranda of Understanding with external
federal agencies through OSHA’s public website. We also reviewed information
provided by officials from external federal agencies that have enforcement
authority for industries and occupations at elevated risk for contracting COVID-
19. Lastly, we reviewed OSHA training documents and outreach efforts with
external federal agencies.
RESULTS
OSHA did not collaborate to encourage referrals 2 of potential COVID-19 safety
and health hazards from external federal agency personnel active in industries
with a high-risk of COVID-19 exposure. These high-risk industries have oversight
and enforcement personnel on-site from the U.S. Department of Agriculture’s
Food Safety Inspection Service (FSIS); the Department of Health and Human
Service’s Food and Drug Administration (FDA) and Centers for Medicare and
Medicaid Services (CMS); and the Department of Justice’s Bureau of Prisons
(BOP). OSHA viewed collaboration with these external agencies as separate
from its enforcement capabilities, rather than as a way to enhance its
enforcement. However, the Wage and Hour Division (WHD) and OSHA, both
2
A referral is an allegation of a potential workplace hazard or violation received by OSHA from a
variety of potential sources including a state or local health department, an employee, the media,
or another government agency.
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U.S. Department of Labor – Office of Inspector General
internal Department of Labor (DOL) agencies, indicated collaboration helped
them achieve their individual missions.
Not only did OSHA fail to leverage opportunities for collaboration with external
agencies, it also did not identify those external agencies with enforcement or
oversight personnel who would be active at worksites and could inform OSHA’s
hazard-specific outreach and training. This is critical because complaints
increased 15 percent from 2019 to 2020, while OSHA sharply reduced its onsite
inspections during COVID-19 when it already had historically low number of
inspectors. OSHA and WHD entered into a collaborative Memorandum of
Understanding (MOU) in August 2021 that recognized the value of a
collaborative partnership to protect the health and well-being of the nation’s
workforce. However, OSHA had not created any additional MOUs nor updated
existing ones focusing on collaboration with external federal agencies that
conduct enforcement or oversight activities of high-risk industries and could have
made referrals during the pandemic.
Furthermore, OSHA did not track referrals it received to identify the sources and
review outcomes of those referrals. OSHA also did not analyze this information to
determine which agencies did not regularly make referrals and which areas and
types of outreach and training might be needed to encourage external agencies
to share their referrals. Based on our review, OSHA could increase its
collaborative efforts with external federal agencies’ enforcement or oversight
personnel to help safeguard U.S. workers during the current pandemic, as well
as any future large-scale safety and health crisis.
We recognize the challenges external federal agencies’ enforcement or oversight
personnel faced in referring worker safety and health hazards to OSHA.
Personnel hired and trained to assess compliance with their agency’s applicable
rules and regulations were not necessarily trained to identify potential worker
safety and health hazards according to OSHA’s rules and regulations. Since
OSHA’s mission and work was not within their scope, external federal agencies
did not want to increase their staff’s workload or overstep their authority.
However, during the current pandemic, OSHA could have done more in terms of
collaborative efforts by identifying those external federal agencies with
enforcement or oversight personnel in higher-risk industries and using their input
to inform hazard-specific outreach and training. OSHA could have also tracked
and analyzed its referral information to determine the outreach and types of
training those agencies might need to increase the likelihood of referrals being
made to OSHA. It also could have explored mechanisms, such as MOUs or other
written agreements, with federal agencies that oversee high-risk industries; and
updated its existing MOUs with external agencies to ensure they are current and
include accountability characteristics.
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U.S. Department of Labor – Office of Inspector General
OSHA DID NOT COLLABORATE TO ENHANCE
ITS ENFORCEMENT AND OVERSIGHT
ACTIVITIES TO HELP SAFEGUARD MISSION
CRITICAL WORKERS DURING THE
PANDEMIC
The COVID-19 pandemic created a unique challenge for OSHA—namely, how to
prevent, to the greatest extent possible, the transmission of a highly contagious
virus in worksites where employees deemed mission critical continued to work. A
number of such employees worked in industries at highest risk of COVID-19
exposure, including meat processing plants, nursing homes, hospitals, grocery
stores, restaurants, and correctional institutions. As of January 19, 2022, more
than 1 million of these mission critical workers contracted COVID-19, with many
resulting fatalities. Reducing morbidity and mortality rates of these essential
workers required a whole-of-government approach from multiple agencies.
As a means of reducing person-to-person contact during the pandemic, OSHA
reduced the number of its inspections, particularly onsite inspections, while
already having a historically low number of CSHOs with a growing number of
facilities to inspect. With reduced staff resources and fewer OSHA personnel
onsite, collaboration between OSHA and external federal agencies with onsite
enforcement or oversight personnel operating in high-risk COVID-19 industries
was key to keeping mission critical workers safe and healthy at work.
Although important, OSHA stated collaborating with external federal agencies
“does not come before direct enforcement of our regulations and standards,
outreach to the regulated community, setting of standards and providing
guidance, training compliance officers on unique hazards, etc.” This indicated
OSHA prioritized its enforcement activities to such a degree that it viewed
collaboration with its federal partners as separate from rather than integral to its
enforcement capabilities even though OSHA’s counterparts at external federal
agencies were present at worksites when OSHA was not during the pandemic.
As there are no statutory mandates, policies, or procedures on collaborating with
external federal agencies’ enforcement or oversight personnel during large-scale
safety and health crises, such as the COVID-19 pandemic, OSHA and external
federal agencies were generally hesitant to collaborate on the safety and health
of mission critical U.S. workers during the pandemic.
As a result, OSHA did not attempt to collaborate with external federal agencies’
enforcement or oversight personnel, and therefore, failed to realize the potential
benefits that could have been achieved through interagency collaboration to
protect the workers most vulnerable during the pandemic.
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U.S. Department of Labor – Office of Inspector General
LACK OF COLLABORATION AMIDST OSHA’S
LIMITED RESOURCES AND RISING COMPLAINTS
According to a February 25, 2021 OIG report, 3 OSHA received a sudden influx of
complaints since the start of the pandemic, but as a means of reducing person-
to-person contact, the agency reduced the number of its inspections, particularly
onsite inspections. Compared to a similar period in 2019, OSHA received
15 percent more complaints in 2020 but performed 50 percent fewer inspections.
Consequently, workplace hazards might have gone unidentified and unabated
longer, potentially leaving employees vulnerable to a life-threatening respiratory
disease. Thus, collaboration between OSHA and external federal agencies with
onsite enforcement personnel in high-risk COVID-19 industries might have been
key to abate the soaring infection rates among mission critical workers.
With the Occupational Safety and Health Act of 1970 (OSH Act), Congress
created OSHA, requiring OSHA to ensure all employers are in compliance with
hazard-specific standards and they provide a work environment "free from
recognized hazards that are causing or are likely to cause death or serious
physical harm." In its mission to protect workers, OSHA could leverage
collaborative partnerships with external agencies’ enforcement or oversight
personnel to proactively encourage they refer potential safety and health hazards
to OSHA.
In the last decade, the number of OSHA’s federal CSHOs has decreased from
1,059 in 2011 to 748 in 2020 while business establishments to inspect increased
by over 600,000 to nearly 8 million. 4 Collaborating with external federal agencies’
enforcement or oversight personnel could help OSHA bolster its reduced
inspection resources and better protect workers during a large-scale safety and
health crisis such as the COVID-19 pandemic. OSHA did not leverage external
federal agencies’ enforcement or oversight personnel to help ensure potential
COVID-19 hazards were addressed at job sites. Potential hazards could include
lack of Personal Protective Equipment (PPE) and physical distancing of less than
6 feet. External agencies’ onsite personnel could have easily observed these
highly visible hazards and made a referral for remediation to OSHA.
The Government Performance and Results Modernization Act of 2010
encourages interagency collaboration on common goals. Common goals and
interagency collaboration were also a focus of President Joe Biden’s “2021
National Strategy for the COVID-19 Response and Pandemic Preparedness”
3
DOL OIG, “COVID-19: Increased Worksite Complaints and Reduced OSHA Inspections Leave
U.S. Workers Safety at Increased Risk,” (February 25, 2021; Report No. 19-21-003-10-105).
4
2018 U.S. Census data is the most current data available for the total number of business
establishments in operation.
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U.S. Department of Labor – Office of Inspector General
(National Strategy). The National Strategy emphasizes several common goals
where collaboration between OSHA and external federal agencies is key to
protecting workers and addressing COVID-19. For example, in accordance with
the National Strategy’s common goal to protect workers and issue stronger
worker safety guidance, the Administration took steps to cover workers not
typically under OSHA’s purview by directing external agencies like the
Department of Transportation to keep workers safe. Further, the Administration
directed the Small Business Administration to work with the DOL to disseminate
updated OSHA guidance on worker safety and support businesses in
implementing the updated guidance. Similarly, a recent Government
Accountability Office (GAO) report 5 contains a recommendation for OSHA to
address resource and communication challenges related to the pandemic. GAO
recommended:
The Assistant Secretary of Labor for Occupational Safety and
Health should assess—as soon as feasible and, as appropriate,
periodically thereafter—various challenges related to resources and
to communication and guidance that the Occupational Safety and
Health Administration has faced in its response to the COVID-19
pandemic and should take related actions as warranted.
INTERAGENCY COLLABORATION PRESENTS
OPPORTUNITIES AND CHALLENGES
In addressing the pandemic’s challenges, interagency collaboration entails both
opportunities and challenges for agencies as they work towards aligning their
resources under common goals while serving their own unique mission and
culture.
In 2012, GAO issued a report 6 to address the challenges of interagency
collaboration and promote best practices for it. GAO determined collaborative
efforts benefit when they address the following seven key features:
5
GAO, “COVID-19: Additional Actions Needed to Improve Accountability and Program
Effectiveness of Federal Response,” (October 2021; Report No. GAO-22-105051).
6
GAO, “Managing for Results: Key Considerations for Implementing Interagency Collaborative
Mechanisms,” (September 2012; Report No. GAO-12-1022).
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U.S. Department of Labor – Office of Inspector General
1. Outcomes and Accountability
2. Bridging Organizational Cultures
3. Leadership
4. Clarity of Roles and Responsibilities
5. Participants
6. Resources
7. Written Guidance and Agreements
By implementing these best practices, OSHA could have addressed potential
challenges with collaboration proactively and effectively to better protect U.S.
workers, their family members, and communities, especially during the highly
transmissible phases of the COVID-19 pandemic.
According to the Centers for Disease Control and Prevention (CDC), as of
January 19, 2022, there were over 869,000 health care personnel COVID-19
cases with over 3,400 deaths and 167,000 correctional institution staff COVID-19
cases with 292 deaths. In April 2021, a WebMD news article reported
meatpacking plants were the source of an estimated 334,000 COVID-19 cases in
the U.S. 7 In the same month, the United Food and Commercial Workers
International reported there were at least 91,400 COVID-19 infections among
frontline grocery workers, with 456 deaths. 8 Additionally, the U.S. House of
Representatives Select Subcommittee on the Coronavirus Crisis released data in
October 2021 showing COVID-19 infections and deaths among workers at five of
the largest meatpacking companies were nearly three times higher than previous
estimates. At least 59,000 employees at those five companies contracted
COVID-19, with 269 deaths amongst those employees. 9
One way that external federal agencies may help to protect workers from health
hazards including but not limited to the COVID-19 pandemic, is to refer
suspected health hazards to OSHA via phone, fax, or OSHA’s online complaint
form. A referral is an allegation of a potential workplace hazard or violation that
OSHA receives from a variety of potential sources, including a state or local
health department, an employee, the media, or another government agency. For
example, enforcement or oversight personnel from any federal agency can refer
to OSHA for investigation suspected hazards of workers not wearing PPE or
physical distancing a minimum of 6 feet.
7
WebMD, “Meatpacking Plants Accounted for 334,000 U.S. COVID Cases,” (April 20, 2021).
8
Supermarket News, “Grocery worker COVID-19 infections, deaths rise: UFCW report,” (April 22,
2021).
9
Select Subcommittee on the Coronavirus Crisis, “Select Subcommittee Releases Data Showing
Coronavirus Infections And Deaths Among Meatpacking Workers At Top Five Companies Were
Nearly Three Times Higher Than Previous Estimates,” (October 27, 2021).
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U.S. Department of Labor – Office of Inspector General
OSHA COULD HAVE LEVERAGED INTERAGENCY
COLLABORATION TO TARGET HIGH-RISK
INDUSTRIES DURING THE PANDEMIC
Over the past decade, the number of business establishments in the U.S. has
continued to increase while the number of federal CSHOs to inspect those
establishments has decreased (see Table 1). With only 748 federal and 1,023
State Plan CSHOs 10 responsible for the safety and health of 130 million workers
at approximately 8 million worksites, OSHA was already challenged to ensure the
safety and health of workers under normal circumstances, and then especially so
during a pandemic. Using funds allocated to OSHA through the American
Rescue Plan Act of 2021, OSHA planned to hire 150 11 CSHOs but despite its
hiring efforts, OSHA wound up with a net loss of 2 federal CSHOs overall. In
order to inspect all worksites, each CSHO, both federal and state, would have to
inspect over 4,300 worksites or nearly 17 sites per day, 5 days per week for one
year. Collaboration between OSHA and external federal agencies with onsite
enforcement or oversight personnel that focus on the referral process could have
assisted in expanding workplace safety and health referrals, and thus increased
worker protection during the pandemic.
10
The OSH Act provides safety and health protections to most private sector employers and
workers in all 50 states, the District of Columbia, and the U.S. territories – either directly through
OSHA or through an OSHA-approved State Plan. Twenty-two State Plans cover state and local
government and private sector workers, and six State Plans cover only state and local
government workers. State Plans are required to be at least as effective as OSHA in adopting
workplace safety and health standards and enforcing these standards within their area of
coverage throughout the state. Federal CSHOs oversee and enforce worker safety and health
issues in federal OSHA states.
11
This figure includes 85 OSHA federal CSHOs and 65 State Plan CSHOs.
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U.S. Department of Labor – Office of Inspector General
Table 1: Federal CSHOs and Business Establishments
We reviewed OSHA’s list of 20 higher-risk COVID-19 industries and analyzed
referral data from those industries to determine a list of 10 industries with the
most COVID-19 referrals (see Table 2). We determined FSIS, FDA, CMS, and
BOP were primarily responsible for the enforcement or oversight of the
occupations in those 10 higher-risk industries. We focused on OSHA’s
collaborative efforts with those agencies and added WHD based on its prominent
enforcement presence in various sectors, including the higher-risk industries that
were the focus of our audit work.
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U.S. Department of Labor – Office of Inspector General
Table 2: Agencies with Enforcement or Oversight in Industries with Higher
COVID-19 Exposure
GAO’s best practices for interagency collaboration include defining the right
participants, their roles and responsibilities, the needed resources, and bridging
organizational cultures. Although OSHA had identified the top industries in which
workers were at higher risk for COVID-19, such as meat processing plants, long-
term care facilities, and hospitals, it had not identified the federal agencies that
were conducting onsite enforcement or oversight activities in those industries.
We found OSHA had not analyzed its referral data. OSHA analysis of referral
data would have allowed it to determine the oversight agencies that regularly
participated in making referrals and the oversight agencies that might need more
outreach and training to increase their participation.
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U.S. Department of Labor – Office of Inspector General
To understand OSHA’s collaborative efforts with external federal agencies, we
sent a questionnaire and invited interviews with BOP, CMS, FDA, FSIS, and
WHD’s oversight personnel and enforcement staff. BOP and WHD engaged in
our interviews while CMS, FDA, and FSIS supplied written responses to our
questionnaire.
We discovered in our interviews with BOP officials and enforcement or oversight
personnel and from written responses provided by CMS and FDA officials and
enforcement or oversight personnel that they had seen workers without PPE and
not physical distancing during the pandemic. While OSHA has an operational
online portal to receive referrals from external agencies, the personnel from
external agencies needed to know where to find the website and how to navigate
the referral process online, or alternatively, how to submit referrals by fax, phone,
or email. BOP, CMS, and FDA indicated they do not typically refer potential
hazards to OSHA. For example, 75 percent of BOP personnel we interviewed
had observed potential COVID-19 worker safety and health hazards during the
COVID-19 pandemic and 87 percent did not refer them to OSHA. BOP stated it
handles potential hazards “on the spot” and it would take too long for OSHA to
address.
FDA personnel asserted they did not receive regular training on OSHA
standards. OSHA had not provided referral process and other safety and health
hazards training to FDA since 2011 despite guidance updates. The 2011 training
predated OSHA’s 2014 and 2020 guidance about submitting electronic safety
and health complaints/referrals and other technological advances in the past
decade. As a result, the 2011 training content might be obsolete. Additionally,
FDA officials explained when an FDA investigator observes an egregious
condition related to a potential safety and health hazard, the investigator works
with division management to make the appropriate referral to state and/or local
authorities.
Because OSHA did not track referrals by agency in its Occupational Safety and
Health Information System (OIS), we were unable to verify whether or not OSHA
received regular referrals from external federal agencies. Considering this
information, OSHA needed to conduct more outreach and training on easy-to-
identify hazards to help ensure external agencies understood this aspect of the
referral process, and to track incoming referrals to ensure the training had been
effective.
Prior to the pandemic, despite receiving some training on potential safety and
health hazards and referrals, only 50 percent of BOP staff interviewed said the
training was useful, and pre-pandemic, none had ever referred potential hazards
to OSHA. When asked, only one interviewee indicated they could see some
benefit to making referrals to OSHA.
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U.S. Department of Labor – Office of Inspector General
OSHA did not encourage or train external agencies’ enforcement or oversight
personnel to make referrals when it issued guidance describing highly visible
safety and health hazards related to COVID-19. OSHA does not normally track
training at the national level and OSHA officials from the National Office had to
request a list of trainings provided between August 2019 and August 2021 from
the local area offices. The local areas offices provided a list of 44 training
sessions including topics such as jurisdiction, mission, referrals, hazard
identification, effect of the pandemic on enforcement, as well as WHD cross-
training. Although 3 of the 44 trainings included information on referrals those
trainings were not provided to external enforcement or oversight personnel.
Agencies faced organizational cultural gaps and challenges in making referrals
that OSHA could have addressed and overcome through focused training. These
challenges included differing missions, such as FSIS’ mission to ensure the
safety and health of meat, poultry, and eggs, not workers’ safety unless it effects
the quality of the product 12. Likewise, FSIS, CMS, and FDA officials emphasized
they do not have the authority to enforce OSHA standards. These statements
indicated confusion regarding OSHA’s referral process. Agency mission and
authority are, in fact, not deterrents to making referrals. A referral is not an
enforcement action that requires authority or a related mission; rather it is a
notification to OSHA about an observed potential safety and health hazard, which
OSHA may determine requires further investigation.
Additionally, a prior GAO report 13 found FSIS inspectors were hesitant to refer
potential safety and health hazards to OSHA. Historically, OSHA had used
referrals from FSIS to inspect FSIS, rather than the employer named in its
referral. Consequently, OSHA’s actions presented a challenge to FSIS’ referral
culture. OSHA outreach and training could have helped to bridge cultural gaps
and challenges and sent a clearer message to external agencies that making a
referral is not enforcing a standard and does not require OSHA authority. It is
particularly important that OSHA clarify these issues of possible
miscommunication and misunderstanding with FSIS enforcement personnel as
they play a prominent role in meat and poultry processing facilities, which are
some of the highest-risk COVID-19 industries and more prone to worker safety
and health hazards.
12
Under 29 CFR 1960, each federal agency must assure safe and healthful working conditions
for its federal workers. It is OSHA’s mission to assure private sector employers provide safe and
healthful working conditions for their workers and this audit focused on the safety and health of
private sector workers in industries at higher risk of exposure to COVID-19.
13
GAO, “Workplace Safety and Health: Better Outreach, Collaboration, and Information Needed
to Help Protect Workers at Meat and Poultry Plants,” (November 2017; Report No. GAO-18-12).
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U.S. Department of Labor – Office of Inspector General
Some agencies, such as BOP and CMS, have their own safety and health
programs and personnel who address safety and health hazards internally, and
there was no requirement for those organizations to refer hazards to OSHA,
unless they resulted in a hospitalization or fatality. Employees may opt to submit
complaints to OSHA instead of internal resolution. However, workers may be
reluctant to share their workplace concerns due to some being in a vulnerable
status as undocumented or foreign-born workers, or fear of potentially lacking
anonymity. Likewise, these employees may be less likely to pursue abatement or
contact OSHA if an employer does not correct a hazard. OSHA had not
collaborated with agencies that have internal safety programs to ensure those
programs effectively corrected hazardous worker safety and health conditions
specifically related to the COVID-19 pandemic. OSHA stated it was appropriate
for federal agencies to try to rectify issues in the business establishments they
oversee, including correctional institutions, hospitals, and meat processing
plants, before referring those issues to OSHA. OSHA also had not collaborated
to define when potential hazards, excluding hospitalizations and fatalities, should
be referred to OSHA versus handled internally.
Our interviews with WHD indicated greater success in collaborating with OSHA.
WHD and OSHA, both DOL agencies, reported concerted efforts to bring
together both of their enforcement programs in a cohesive way to satisfy their
missions. For example, WHD has established agency cross-training to learn
about OSHA regulations and requirements and outlined OSHA’s referral process
in WHD’s Field Operations Handbook. Potentially, due to these concerted efforts,
WHD reported it made health and safety referrals to OSHA during the pandemic
via phone calls or emails. Because OSHA does not track its referrals by agency
as a searchable field in OIS, we could not confirm WHD's referrals.
Unlike WHD’s close collaboration with OSHA to enhance each agency’s
enforcement capabilities, there was no such collaboration with agencies external
to DOL. External agencies said although they had observed safety and health
hazards in industries at higher risk of exposure to COVID-19, they did not refer
them to OSHA. OSHA outreach might have been necessary to help ensure
external agencies knew how to navigate its referral system and address
challenges to making referrals such as those described by FSIS, CMS, FDA, and
BOP.
OSHA did not conduct focused referral outreach or training to external agencies’
enforcement or oversight personnel in high-risk industries. For example, OSHA
had not identified enforcement or oversight roles at external federal agencies,
such as CMS surveyors and FDA division managers, to help ensure they knew
how to make referrals to OSHA. Moreover, OSHA had not evaluated its referral
data to determine the extent to which external federal agencies refer potential
safety and health hazards and had not determined if additional outreach or
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training might be needed in some agencies, such as those agencies with
oversight responsibility for industries with high-risk COVID-19 occupations.
These examples highlight lost opportunities for OSHA to protect workers, their
families, and communities from the spread of COVID-19. To better protect
workers, OSHA could still leverage external agency resources for the current
ongoing pandemic and future large-scale safety and health crises.
Unfortunately, there are no statutory mandates, policies, or procedures to ensure
OSHA’s collaboration with external federal agencies’ enforcement or oversight
personnel during evolving emergency circumstances, such as the COVID-19
pandemic. Lacking a mandate, OSHA did not develop collaboration with external
federal agencies as an important tool to aid enforcement and address the
organizational culture gaps and challenges presented by different agencies’
mission-related priorities.
As part of its mission to protect workers, OSHA could have invested greater effort
towards collaborating with external agencies’ enforcement or oversight personnel
to address challenges and help ensure partner agencies referred easily
identifiable safety and health hazards to OSHA during the pandemic. OSHA had
not identified enforcement or oversight agencies that could have benefited from
outreach and training on OSHA’s referral process. Without delivering the
necessary outreach and training, OSHA could not leverage the observations of
external federal agencies’ enforcement or oversight personnel active on job sites
regarding potential safety and health hazards.
OSHA’S MEMORANDA OF UNDERSTANDING ARE
OUTDATED OR LACK KEY FEATURES AS
COLLABORATIVE TOOLS
MOUs are important tools for collaborating with external federal agencies, but
OSHA’s MOUs regarding interagency collaboration are outdated or lack key
features to effectively address current or future large-scale safety and health
crises such as COVID-19.
We evaluated OSHA's current MOUs 14 regarding collaboration with external
federal agencies against GAO’s “Key Considerations for Implementing
Interagency Collaborative Mechanisms” and the Department of Labor Manual
Series (DLMS) 1-700: Memorandum of Understanding. DLMS 1-700, issued in
August 2020, which defines an MOU as an agreement between two or more
parties that constitutes an understanding between the parties. The DLMS further
states all MOUs involving DOL agencies must be in the best interest of the
14
At the time of our audit fieldwork, OSHA had MOUs dated from 1974 to 2021.
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federal government, consistent with Departmental policy and applicable laws,
and approved by the Department. Additionally, some MOUs are defined as
informal and not legally enforceable (i.e., non-binding), serving only to
memorialize the intent and purpose of the parties' working relationship, whereas
other MOUs may be more formal and/or legally enforceable (i.e., binding) on the
parties.
We determined OSHA’s collaborative MOUs are outdated or lack key
considerations to effectively address an emerging crisis situation such as
COVID-19. Specifically, in comparison to the seven key features outlined in
GAO’s best practices for interagency collaboration, OSHA’s collaborative MOUs
lacked verbiage to identify and evaluate short- and long-term goals; did not
contain processes or procedures to help bridge organizational cultures between
agencies; did not clearly define roles and responsibilities; and did not outline the
specific resources required to accomplish the intention of the MOU.
The DLMS states with the exception of detail MOUs, which are shorter in
duration, MOUs may extend up to a five-year period of agreement. MOUs that
commit budgetary resources must follow applicable appropriation laws or other
legal limits regarding the obligation and expenditure of funds to determine an
MOU’s period of performance. We noted of OSHA’s 47 MOUs, 43 extended
beyond a five-year extension. OSHA issued just 10 MOUs in the past decade
and only 4 in the past 5 years. We also noted although OSHA entered into a
collaborative MOU with WHD in August 2021, it did not establish any additional
collaborative MOUs or other written agreements to protect workers during the
pandemic — indicating OSHA does not regularly update or commonly use MOUs
as a tool for collaboration.
Of the 47 MOUs on OSHA’s public website, we evaluated the 18 MOUs most
related to our audit objective. We found many key elements of GAO’s best
practices for collaboration were missing from those 18 MOUs.
GAO reported defining outcomes and accountability is a key feature for
successful collaboration. Nonetheless, OSHA did not clearly define short-term
and long-term outcomes, nor did it define and implement tracking and monitoring
mechanisms in its collaborative MOUs. For example:
• OSHA officials stated MOUs related to interagency collaboration help
facilitate the relationships between various agencies, but they could not
evaluate whether external federal agency personnel were actually
referring issues they had observed.
• In a 2011 MOU, OSHA came to an agreement with FDA to develop a
practicable process including procedures and criteria for information
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sharing and a plan for implementation; however, this was never
completed.
• In 2012, GAO recommended the Assistant Secretary of Labor for
Occupational Safety and Health should work with FSIS to assess the
implementation of their 1994 MOU, make needed changes to ensure
improved collaboration, and set specific timeframes for periodic
evaluations of the MOU. At the time of our audit fieldwork, the MOU was
not finalized and OSHA said it had removed the outcomes and
accountability features as part of its update.
• In August 2021, OSHA and WHD finalized their MOU that recognized the
value of a collaborative partnership to protect the health and well-being of
the nation’s workforce. However, the MOU focuses on interactions
between the agencies while lacking outcomes.
• OSHA officials indicated CSHOs at the local level use various MOUs to
determine jurisdiction and share information with federal partners.
GAO also indicated roles, responsibilities, and resources are key features of
collaborative efforts that need to be defined. Yet OSHA did not define resource
commitments or include information on how to fund or staff the collaborative
efforts in its MOUs, stating it “does not consider this to be critical for identifying in
its MOUs.” Of the MOUs we evaluated, 50 percent did not contain language to
determine whether an agency’s commitment of resources was allowable and only
28 percent included information describing how to fund and staff the collaborative
mechanism. In addition, GAO noted online tools are useful mechanisms for
interagency collaboration. Although OSHA has an online tool to receive referrals
from external agencies, it had not developed or referenced online tools for any of
the MOUs we reviewed, mostly because the MOUs pre-dated the long-standing
practice of using online tools as normal business practice.
GAO’s key features for successful interagency collaboration also included using
written guidance and agreements. However, OSHA had not entered into written
agreements with all of the agencies that have enforcement or oversight
personnel in high-risk COVID-19 industries, nor had the agency undertaken
initiatives to update existing MOUs. For example:
• OSHA established an MOU with WHD during August 2021; however, it did
not establish any additional collaborative MOUs or other written
agreements to protect workers during the pandemic.
• According to OSHA officials, periodically updating MOUs was not
necessary, unless an issue surfaced, since the fundamental mission and
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responsibilities of a cabinet-level Department tend not to change over
time. Therefore, the existing MOUs were still helpful for the field offices.
• OSHA stated, “While updating timeframes may have been contained in
the original MOU agreement resource restrictions require the Agency to
focus its efforts in areas of the greatest benefit for the Agency.”
• There was no MOU between BOP and OSHA.
• There was no MOU between CMS and OSHA.
• OSHA said it informally collaborated with external agencies, such as the
CDC, National Institute for Occupational Safety and Health, and USDA,
during the pandemic to consult on best practices, continually updated
science, and issuing guidance. However, it did not document its meetings
with its collaborative stakeholders or otherwise monitor and track its
progress toward common collaborative goals.
OSHA’s most current MOUs were ineffective to put into motion a whole-of-
government approach for large-scale safety and health crises such as the
COVID-19 pandemic. OSHA used MOUs to share information, but had not
incorporated specific, outcome-oriented, and accountability characteristics, as
recommended to OSHA in prior GAO reports or according to GAO’s best
practices regarding the seven key features benefitting collaboration in the federal
government.
OSHA could take proactive steps by incorporating GAO’s seven key features into
its collaborative MOUs under development or being updated. The objective is for
OSHA to encourage external federal agencies with enforcement or oversight
personnel directly at worksites to make referrals to better protect the safety and
health of U.S. workers.
OIG’S RECOMMENDATIONS
We recommend the Assistant Secretary for Occupational Safety and Health:
1. Develop an OSHA outreach plan to be activated during a large-scale
safety and health crises such as the COVID-19 pandemic that (a)
identifies external federal agencies with enforcement or oversight
personnel who are active on worksites and (b) defines how OSHA will
collaborate with those agencies. OSHA should consider incorporating into
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the plan: a process to identify and document highly visible, safety and
health hazards for large-scale safety and health crises; a plan for how
OSHA will conduct related outreach and training on those hazards and
how to refer them to OSHA; and a tracking system for agency referrals
and outcomes of those referrals, using that information to periodically
inform the outreach plan on areas and types of guidance and training the
agencies’ oversight and enforcement personnel need.
2. Explore mechanisms to enhance collaboration, such as MOUs or other
written agreements using GAO’s seven key features for collaboration, and
incorporate a process to utilize those mechanisms into the outreach plan.
SUMMARY OF OSHA’S RESPONSE
OSHA generally disagreed with the report and provided a number of comments.
We considered OSHA’s comments to the report and adjusted the report as
appropriate. However, OSHA’s response did not change our conclusions in the
report.
OSHA’s response stated it collaborated with external agencies in numerous ways
through workgroups and meetings as evidence of their collaboration with external
federal agencies. However, we still maintain that OSHA could have invested
greater effort towards collaborating with external agencies’ enforcement or
oversight personnel to address challenges, and to help ensure partner agencies
referred easily identifiable safety and health hazards to OSHA during large-scale
safety and health events.
Additionally, OSHA’s response asserted under 29 CFR 1960, federal agencies
have occupational safety and health responsibilities and authority for their own
employees, including training all their employees on occupational safety and
health, and that these federal agencies can request assistance from OSHA when
needed. However, it is OSHA’s mission to ensure private sector employers
provide safe and healthful working conditions for their workers by setting and
enforcing standards and by providing training, outreach, education, and
assistance.
This audit focused on the safety and health of private sector workers in industries
at higher risk of exposure to COVID-19.
OSHA also recommended we modify our second recommendation to focus on
actions OSHA can undertake to ensure federal agencies understand their
responsibilities under 29 CFR 1960. The intention of our recommendation to
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explore mechanisms to enhance collaboration, such as MOUs or other written
agreements is for OSHA to enhance its collaborative efforts with external federal
agencies to be better prepared for future large-scale safety and health events.
OSHA can include information on federal agencies’ responsibilities under 29
CFR 1960 as part of its enhanced collaborative efforts with external federal
agencies. Thus, we did not make any changes to the recommendation.
OSHA’s response to our draft report is included in its entirety in Appendix B.
We appreciate the cooperation and courtesies OSHA extended us during this
audit. OIG personnel who made major contributions to this report are listed in
Appendix C.
Carolyn R. Hantz
Assistant Inspector General for Audit
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APPENDIX A: SCOPE, METHODOLOGY, & CRITERIA
SCOPE
The audit covered OSHA’s efforts to collaborate with external federal agencies’
enforcement or oversight personnel to help safeguard U.S. workers during the
COVID-19 pandemic between February 1, 2020, and January 19, 2022. The
audit also covered the review of OSHA’s referral data from February 1, 2020, to
November 17, 2020, OSHA’s list of 20 industries at higher risk of COVID-19
exposure, and OSHA’s MOUs with external federal agencies. We extracted other
information directly from the U.S. Census Bureau’s publicly available database
for business establishments from 2011 to 2018, and the CDC’s COVID-19 Data
Tracker for the COVID-19 cases and deaths between February 1, 2020, and
January 19, 2022. Lastly, we reviewed information provided by or interviewed
enforcement or oversight personnel at the U. S. Department of Agriculture Food
Safety and Inspection Service (FSIS), the Department of Health and Human
Services Centers for Medicare and Medicaid Services (CMS) and Food and Drug
Administration (FDA), the Department of Justice Bureau of Prisons (BOP), and
the Department of Labor Wage and Hour Division (WHD).
METHODOLOGY
We conducted this performance audit in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
To achieve our audit objective, we:
• Reviewed public laws and regulations, and DOL and OSHA guidance
related to MOUs and COVID-19.
• Interviewed OSHA officials to learn about OSHA’s enforcement programs
and challenges faced to collaborate with external federal agencies,
especially during the pandemic.
• Reviewed OSHA’s MOUs with external federal agencies to determine how
OSHA historically collaborated with federal agencies and potentially
identify best practices for developing specific, measurable, achievable,
relevant and time-bound outcomes and reporting processes.
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• Analyzed OSHA’s referral data and its list of 20 industries to determine a
list of ten industries with the most COVID-19 referrals.
• Identified BOP, CMS, FSIS, FDA and WHD were primarily responsible for
enforcement or oversight of these ten industries with workers at higher risk
of exposure to COVID-19.
• Interviewed and/or analyzed responses from BOP, CMS, FSIS, FDA, and
WHD enforcement or oversight personnel to learn about their experiences
of collaborating with OSHA, including identifying worker safety and health
hazards and referral process to OSHA.
• Reviewed evidence for OSHA training with external federal agencies and
documentation of OSHA’s outreach efforts.
RELIABILITY ASSESSMENT
In planning and performing the audit, we relied on computer-generated data file
from OSHA. We assessed the reliability of this data by (1) performing analytical
tests and tracing selected data elements for completeness and authenticity of the
data elements used in the audit, and (2) reviewing existing information reported
on OSHA’s public website. We determined that the data were sufficiently reliable
for the purposes of this audit report.
INTERNAL CONTROL
In planning and performing our audit, we considered OSHA’s internal controls
relevant to our audit objective by obtaining an understanding of those controls
through interviews and reviews of policies and procedures. We assessed the
following internal control areas relevant to the audit objective: Control
Environment, Control Activities, Agency Risk Assessment, Information and
Communication, and Monitoring. Our consideration of internal controls relevant to
our audit objective would not necessarily disclose all matters that might be
significant deficiencies. Because of inherent limitations in internal controls, or
misstatements, noncompliance may occur and not be detected.
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CRITERIA
• Department of Labor Manual Series (DLMS) 1-700: Memorandum of
Understanding, August 2020
• GAO, “COVID-19: Additional Actions Needed to Improve Accountability
and Program Effectiveness of Federal Response,” (October 27, 2021,
Report No. GAO-22-105051)
• GPRA Modernization Act of 2010
• National Strategy for the COVID-19 Response and Pandemic
Preparedness, January 21, 2021
• Occupational Safety and Health (OSH) Act of 1970
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APPENDIX B: AGENCY’S RESPONSE TO THE REPORT
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APPENDIX C: ACKNOWLEDGEMENTS
Key contributors to this report were:
Mark Schwartz, Audit Director
Nicholas Christopher, Audit Director
Jen Varvel, Audit Manager
Steve Chiang, Auditor
Jennifer Dunbar, Program Analyst
Labony Chakraborty, Writer-Editor
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http://www.oig.dol.gov/hotline.htm
Telephone
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Fax
(202) 693-7020
Address
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U.S. Department of Labor
200 Constitution Avenue, NW
Room S-5506
Washington, DC 20210
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