These States Aren’t Waiting for the Feds to Create COVID-19 Worker Safety Rules

By: - August 19, 2020 12:00 am

Workers process chickens at a poultry plant in Fremont, Nebraska. Virginia Gov. Ralph Northam, a Democrat, ordered regulators to create workplace safety rules to limit the spread of COVID-19 after a surge in coronavirus cases linked to poultry plants in the state. Nati Harnik/The Associated Press

Editor’s note: This story was updated on Sept. 21. An earlier version of this article misstated the number of workplaces California OSHA had told to prepare for citation. The correct number is about 35.

Read Stateline coverage of the latest state action on coronavirus.

Ron Smith, a bus operator in San Mateo County, California, says at least six of his colleagues have tested positive for the new coronavirus. But until recently, he said, it was unclear whether bus operators should keep going to work if they were exposed to a sick colleague. The bus drivers union also wasn’t getting updates on the number of workers falling ill.

Smith said he’s worried about getting infected on the job and exposing his wife, who has Parkinson’s disease. “I would like to know the risk that I am taking coming to work, and the possibilities that I could expose my family member,” he said.

The transportation district has since told workers that if they’re exposed to an infected person, they should quarantine while waiting for coronavirus test results, Smith says. But he said it would be a good idea if the state laid out clear rules for all companies to keep workers safe during the pandemic.

In the absence of federal action, some left-leaning states are creating safety rules to protect workers from catching the coronavirus while on the job. Rules went into effect in Virginia last month, and regulators in California and Oregon are now debating a similar move. 

Unions and labor advocates have implored states to create coronavirus-specific safety standards. They say employers must be forced to provide protective equipment, create socially distanced break rooms, tell sick workers to stay home and take other steps to reduce infection risk. 

“In our experience in enforcing wage and hour violations — until there’s a law, non-union janitorial contractors will not follow it,” said Yardenna Aaron, executive director of the Maintenance Cooperation Trust Fund, a Los Angeles-based janitorial watchdog that’s petitioning for a standard in California. “So issuing guidance, in our opinion, is not enough.” 

Yet business groups say there’s no need for new regulations. They say state and federal officials already can crack down on businesses for not protecting workers, and that states have resolved most coronavirus complaints fairly easily. Creating rules before scientists fully understand how COVID-19 spreads will burden companies with confusing paperwork, they argue. 

Most Virginia businesses were following federal Centers for Disease Control and Prevention recommendations and state public health orders before the state standard went into effect, said Nicole Riley, Virginia director of the National Federation of Independent Businesses, a Washington-D.C. based group that advocates for small businesses. 

Businessowners now must study the new rules, assess employee risk of workplace exposure to the virus, write an infectious disease response plan and train workers in required safety protocols by the end of September. 

“You as an owner are trying to do all this work on top of trying to keep your business afloat during this pandemic,” Riley said. 

Dan Lieberman, a public affairs specialist for the San Mateo County Transit District, said in an email to Stateline that the agency promptly notified the bus drivers union when employees tested positive and has been following public health orders and guidance from the county, state and CDC.   
“There has been no indication that an employee has contracted COVID-19 due to a workplace exposure,” he added.

No National Standard

The debate over safety rules has shifted to the states as it’s become clear that the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has no plans to create a national safety standard. The AFL-CIO in June lost a lawsuit it hoped would compel the agency to act.

“The federal agency that usually is responsible for protecting workers from dangerous conditions at work has totally abdicated its responsibility,” said Deborah Berkowitz, worker health and safety program director at the National Employment Law Project, a New York City-based think tank. “It’s completely missing in action.”

Berkowitz, a former OSHA official during the Obama administration, said the federal agency also isn’t doing enough to respond to coronavirus-related complaints. Despite receiving over 8,000 such complaints since April, it has issued only three citations, all to an Ohio nursing home chain. 

U.S. Secretary of Labor Eugene Scalia says OSHA’s industry-specific safety recommendations go far enough, given that federal law already requires businesses to provide workplaces free of deadly or seriously harmful hazards.

“We believe we already possess the enforcement authority we need,” Scalia said in a June speech at the Heritage Foundation, a conservative Washington, D.C., think tank, “and that our current approach is the best means to protect workers and give employers guidance and confidence in the steps to be taken to provide a safe workplace and satisfy their obligations.”

It’s possible Congress will force Scalia’s hand: The latest House Democratic coronavirus aid bill would require OSHA to issue an emergency coronavirus standard.  

But for now, labor advocates are looking to the states. About half the states run their own federally approved health and safety programs, which cover either all employees or just public sector workers. Officials in those states can create state-level workplace safety standards that go beyond federal requirements. 

In Virginia, a Democratic governor sympathetic to labor, a grassroots pressure campaign that began with poultry plants and the structure of its OSHA program all helped the state become the first to announce a coronavirus-specific standard, said Rebecca Reindel, director of occupational safety and health at the AFL-CIO. “It’s sort of like the stars aligned.”

Virginia’s new standard codifies CDC guidance, such as by requiring all employers to provide face masks to certain workers and give staff frequent access to hand sanitizer or soap and water. It requires employers to train workers on coronavirus prevention and prohibits employers from retaliating against workers who report infection control concerns.

Not all governors can order emergency regulations, as Virginia Gov. Ralph Northam did. In North Carolina, for instance, the labor commissioner is an elected official who doesn’t report to the governor — making it politically more difficult to create a statewide standard, Reindel said.

Other progressive states may follow Virginia’s lead. Oregon’s OSHA is using its own statutory authority to create a temporary standard, and regulators there have begun hosting listening sessions with workers and businessowners. In California, regulators are currently considering a petition from labor groups to create a state standard.

Governors also can use executive orders to require enforcement of public health recommendations, Reindel said, as Michigan Democratic Gov. Gretchen Whitmer has done.

In a June executive order, Whitmer required businesses to take steps such as keeping everyone on a worksite at least six feet apart, requiring employees to wear face coverings if they can’t keep a safe distance from others and immediately notifying the local public health department, co-workers and contractors if a worker tests positive for the virus.     

State Complaints

State OSHA programs, like federal OSHA, already are responding to coronavirus-related complaints.

And as at the federal level, few of the complaints filed in California, Oregon and Virginia have resulted in formal citations and fines. In Oregon, for instance, most coronavirus-related safety complaints have been resolved after regulators talked to employers over the phone or sent them a letter.

The high number of easily closed cases appears to back up industry claims that few businesses are willfully violating safety recommendations. But worker advocates say the data also could suggest confusion within state agencies over what counts as a workplace safety violation during the pandemic. 

“The reality is, they can’t enforce what doesn’t exist yet,” Oregon AFL-CIO President Graham Trainor said of the state agency. He said that a statewide standard would make it crystal clear when an employer is doing something wrong. 

Oregon OSHA has received over 8,000 coronavirus-related complaints since March. Among them: an allegation that cashiers at a local grocery store weren’t wearing face coverings and an allegation that bosses at a tanning salon had told symptomatic employees to keep coming to work.

So far, regulators have conducted 60 inspections and issued 14 citations. “In most cases, we are in fact able to reach a resolution by clarifying issues with employers without the need for an actual enforcement visit,” said Aaron Corvin, a public information officer for Oregon OSHA, in an email to Stateline

Corvin said the agency is “somewhat more hesitant” to conduct inspections during the pandemic, both because of the volume of complaints it’s receiving and the health risk of in-person interactions. 

A new state standard is unlikely to change the process for responding to complaints.

California OSHA has received about 5,000 complaints, conducted 538 inspections and told about 35 workplaces to prepare for a citation. Virginia’s labor department has received about 656 coronavirus-related complaints since the pandemic began and conducted 29 inspections (the agency did not respond to a Stateline request for citation numbers by publication time). 

Poultry Plant Risks

In Virginia, coronavirus outbreaks at poultry plants pushed Northam in May to ask the state labor department to issue a temporary emergency standard for preventing the spread of the virus at all workplaces.

The temporary standard expires after six months, when the state of emergency declared by the governor ends or when it’s replaced by a permanent standard the state labor department is now developing and intends to adopt.

Poultry plant workers and their allies launched a campaign for statewide rules after workers said they weren’t being provided with face masks, couldn’t keep a safe distance from co-workers and were worried about retaliation if they complained, said Jason Yarashes, an attorney for the Charlottesville, Virginia-based Legal Aid Justice Center, a group that advocated for the standard.

Workers also were getting sick. Northam announced in early May that more than 260 coronavirus cases were associated with two poultry plants on Virginia’s Eastern Shore alone. 

Poultry companies, like other businesses in the state, opposed the new rules and said they already were taking action to reduce infections.

“From the outset — way back in March or before — poultry plants across Virginia took significant and unprecedented steps to protect workers,” said Hobey Bauhan, president of the Virginia Poultry Federation, a trade group. That includes cleaning facilities thoroughly, checking employee’s temperatures and installing plastic dividers between workstations, he said.

While Bauhan acknowledged that at times there have been coronavirus outbreaks among poultry workers, “the caseload is way, way down,” he said. 

It’s unclear how many coronavirus cases have been linked to poultry plants. Virginia’s health department has reported over 3,000 cases linked to non-health care “congregate settings,” such as businesses, churches and community events, but the agency doesn’t publish more specific data.

Advocates for workers say employers who are already following state and federal safety guidelines should embrace official standards. “Our belief is that if good actors are doing the right thing, a rule around infectious disease standards should be no big deal,” Trainor said. 

Business groups and their allies, however, say it doesn’t make sense to create strict standards while scientific guidance is constantly changing.

Some aspects of the Virginia standard are already out of date, said Eric Conn, chair of the OSHA Workplace Safety Practice Group at Conn Maciel Carey, a Washington, D.C.-based law firm that represents employers.

For instance, the rules include a former CDC recommendation that employers use either symptoms or test results to judge when an infected employee can safely return to work. The latest CDC guidance advises employers to use only symptoms.  

And business groups worry that new regulations could lead to lawsuits.

While Virginia’s new standard doesn’t presume sick workers caught coronavirus on the job, Riley of the National Federation of Independent Businesses said it could still encourage lawsuits blaming employers for workplace outbreaks or holding them responsible for customer behavior.

“That sets the businessowner up for a lot of liability,” she said.

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Sophie Quinton

Sophie Quinton writes about fiscal and economic policy for Stateline. Previously, she wrote for National Journal.