In his recent essay, Professor David Yamada (Suffolk) provides an enlightening introduction to the law of workplace safety with respect to the Occupational Safety and Health Act of 1970 (OSH Act) and its enforcement by the Occupational Safety and Health Administration (OSHA). Because the limits of the OSH Act and OSHA’s role in workplace safety became highlighted to all essential workers in American society during the recent COVID-19 pandemic, the importance of continuing to explore better safety protections for employees remains a pressing public concern. Yamada’s essay covers the important role that the OSH Act and OSHA play in workplace safety in a succinct manner while he also points to failures to provide more remedies for workers’ mental health after being subjected to toxic workplaces, and particularly due to workplace bullying, as a fallout from COVID.
Yamada’s stated goal is “to contribute to a needed conversation about policy options for extending the regulatory reach of the OSH Act to cover severe psychological harms at work and to anticipate expanded enforcement responsibilities for OSHA and its realm.” (P. 395.) Unfortunately, very few workplace law professors analyze the OSH Act or OSHA in their scholarly endeavors. Before now, Jotwell’s Worklaw Section has covered only one publication addressing an OSH Act or OSHA issue: back in 2017. This lack of scholarly attention to OSHA is surprising in light of the agency’s existence for more than fifty years and its key presence as exemplified when a national pandemic arose in 2020 affecting the health and safety of so many workers.
Yamada starts by offering an interesting introduction to workplace safety law and the origins of the OSH Act and OSHA. (Pp. 395-97.) The OSH Act’s general duty clause requires that employers must provide a safe workplace free from recognized hazards that may lead to physical harm. (Pp. 397-99.) Yamada also notes that the OSH Act and OSHA have been subjected to “consistent criticisms from both the political left and the right” as unions want stricter enforcement and employers want lesser restrictions. (Pp. 398-99.) This clear and concise discussion of the origins of OSHA and the OSH Act and how they operate in practice offers a valuable resource to all workplace law scholars whether new to the field or long-time discussants.
Yamada starts his analysis by reviewing the Surgeon General’s October 2022 report establishing a framework for “Workplace Mental Health & Well Being” that “recognizes the unique and challenging workplace circumstances generated by the COVID pandemic” while also “listing survey data suggesting mental health impacts … [created by] the COVID pandemic.” (P. 393 and n.3.) Although that report lists “bias, discrimination, emotional hostility, bullying and harassment” as sources of psychological harm from COVID, Yamada recognizes that workplace safety law does not clearly regulate the psychological harms caused by workplace bullying. Yamada discusses his own herculean efforts to have Congress and the states pass specific laws that prohibit workplace bullying and acknowledges those efforts have not led to any real success. (Pp. 404-05.)
As a result, Yamada proposes two changes to allow the OSH Act and OSHA to address this problem of bullying and other psychological harms to workers as a safety concern that became highlighted as an impact from COVID. First, Yamada asserts that the OSHA general duty clause can be interpreted more broadly to cover workplace bullying as a hazard that causes serious harm to workers even though the language only refers to “physical harm.” He equates this extension to the general duty clause by relying on OSHA’s prior extension of the general duty clause to cover workplace violence. Second, Yamada argues that the OSH Act can be amended by adding language in the general duty clause to include “psychological harm” to the obligation of providing a workplace free of any recognized hazard that is likely to cause physical harm to an employee. Yamada notes that OSHA will have to develop guidance on how to distinguish everyday occupational stressors from serious psychological harms occurring in the workplace.
Yamada ends his argument in support of extending psychological harm to the OSH Act and OSHA by looking at international standards. According to Yamada, “international standards leave the United States distinctly behind the curve in adopting legal responses to severe psychological harms at work.” (P.409.)
Yamada accepts that for his proposed changes in policy to occur, OSHA would have to invest a tremendous about of time and resources in training and funding to help educate inspectors and other constituents in understanding the dynamics of how workplace bullying leads to psychological harm for workers. He notes that such an undertaking by OSHA, an underfunded and understaffed agency, is unlikely to occur. Yamada also recognizes that Congress may not likely address these concerns any time soon and OSHA does not have the current structure to tackle new challenges without congressional support. Nevertheless, Yamada is committed to fostering some ongoing level of discourse on this workplace safety concern.
Although Yamada’s essay makes convincing arguments for reforms to the OSH Act and OSHA based upon psychological harms to workers, especially with respect to bullying, those changes admittedly will not likely occur in the present or even the immediate future. Nevertheless, Yamada’s thoughtful explanations and observations about the OSH Act and OSHA in practice and what those safety protections could offer to workers in the future is an essay that I like a lot.
