Biden order to OSHA on COVID-19 a ‘game changer’ for NC workers, advocates say
An executive order directing the Occupational Safety and Health Administration to issue new guidance to employers on protecting workers from COVID-19 will be a “game changer” for North Carolina workers, according to advocates.
The order, one of 10 signed by President Joe Biden in his first full day of office Thursday, signals a sweeping shift from the Trump administration’s oversight of the agency. Under President Donald Trump, OSHA, the federal agency responsible for protecting workers from workplace hazards, relaxed reporting requirements related to COVID-19 and announced that it would mostly avoid inspecting workplaces in person.
In addition to requiring OSHA to issue new guidance, the executive order launches a national program to strengthen OSHA enforcement related to COVID-19 violations. It also requires OSHA to consider issuing emergency temporary standards on COVID-19, like requiring masks in workplaces.
Some states have implemented additional worker protections during the pandemic. But North Carolina has declined to do so, meaning that stricter guidance from the federal level would prompt a significant change in the requirements facing employers.
“For workers in North Carolina that have very little protections right now from the state, this is a game changer,” said Debbie Berkowitz, director of the Worker Safety and Health program at the National Employment Law Project and former chief of staff at the U.S. Occupational Safety and Health Administration. “Residents of North Carolina deserve the same protections that workers in Ohio, Pennsylvania, and New York will get.”
Berkowitz expects that North Carolina will be subject to particular scrutiny from a revamped federal OSHA, because “the agency in North Carolina under the previous commissioner did such an incredibly poor job.”
Former Department of Labor Commissioner Cherie Berry, a Republican who finished her fifth consecutive term as commissioner earlier this month, consistently downplayed the seriousness of COVID-19 as a workplace threat.
In a Nov. 9 letter sent in response to demands from worker advocacy groups, Berry wrote, “While I am not dismissing the tragic deaths that have occurred as a result of this virus, statistically, the virus has not been proven likely to cause death or serious physical harm from the perspective of an occupational hazard.”
Meanwhile, there have been 348 clusters reported in workplaces in North Carolina during the pandemic with 7,762 cases and 34 deaths, according to the state Department of Health and Human Services.
Those numbers have continued increasing: at the end of November there were 280 workplace clusters reported with 6,636 cases associated.
“Every day, workers continue to struggle because employers aren’t providing the proper protection, aren’t enforcing social distancing, at a time when the pandemic is only becoming more severe,” said MaryBe McMillan, president of the North Carolina AFL-CIO. “We’re just really excited to see a step forward that we’ve been pushing for since March.”
Limited COVID-19 protections for NC workers
North Carolina is one of 22 states that operate their own job safety programs, rather than a program operated by the federal Occupational Safety and Health Administration. According to the Occupational Safety and Health Act of 1970, those states are obligated to develop standards “at least as effective in providing safe and healthful employment” as those established by OSHA.
But over the past year, North Carolina worker advocates have argued that the state has failed to meet even the low bar set by the federal OSHA.
Despite numerous outbreaks of COVID-19 at meatpacking plants and other workplaces, the DOL declined to adopt or amend any health and safety standards specific to COVID-19. Instead, it issued voluntary guidance to employers.
It also declined to investigate many COVID-19 related complaints from workers. During the spring and early summer, as the virus spread rapidly through the state’s meatpacking plants, the state Department of Labor received 75 complaints and referrals related to COVID-19 and the meat packing industry. As of July 15, none had prompted a site visit, the NC Watchdog Reporting Network reported at the time.
By the end of October, nearly 4,000 North Carolina workers across all industries had filed complaints. The department had issued citations to five employers for COVID-19-related reasons, but all were connected to investigations the department pursued in response to a workplace accident or fatality, or a non-COVID-19-related hazard, The News & Observer reported.
In October, North Carolina labor advocates filed a petition for rulemaking with DOL, proposing that the department require all employers to develop a COVID-19 response plan, provide workers with face masks, ensure adequate ventilation, require workers to report symptoms of COVID-19 and self-isolate if they have symptoms.
After then-Commissioner Berry denied the petition, the labor groups filed an appeal in December with the Wake County Superior Court, asking the court to compel the DOL to reconsider. A hearing date has not yet been set.
Commissioner Josh Dobson, a former state representative who began his term on Jan. 2, declined to comment on either the petition for rulemaking or Biden’s executive order. “He’s getting his feet under him here at NCDOL, and part of that is talking with stakeholders and department staff to understand all sides of the issue,” a spokesperson told The News & Observer.
Labor advocates say they hope OSHA will implement its own temporary standards, which would likely include some of the same rules they demanded in their petition.
“I’m hoping that OSHA will really take this opportunity to have an emergency rule because part of what we have seen is agencies washing their hands of the responsibility for workers’ safety during the pandemic,” said Ilana Dubester, executive director of El Vínculo Hispano/The Hispanic Liaison, a Latino advocacy organization that serves many meatpacking workers. She said an emergency standard should also serve as a basis for a permanent set of rules about labor protections during public health crises.
“It’s about time. We’re a year into the pandemic, and it’s about time,” she said.
This story was originally published January 22, 2021 at 3:15 PM.
