Many States Resist Adapting Worker Safety Rules to Pandemic

This story originally appeared on Stateline.

When Corey Hill reports for work at the Daimler Trucks manufacturing plant in Cleveland, North Carolina, he knows he won’t be able to stay a safe physical distance from his coworkers on the assembly line.

Because the plant’s machinery can’t be moved, his union fought for and secured other protections, including temperature checks, a mask mandate, testing transparency and paid sick time. While his plant has seen several COVID-19 cases during the pandemic, it has so far avoided a major outbreak. He knows many workers in his state aren’t so lucky.

Throughout the pandemic, state labor officials in North Carolina have not issued a single citation for a safety violation related to COVID-19. 

“What are we doing for those workers out there who don't have a voice in their workplace?” asked Hill, president of the United Auto Workers Local 3520. “It's still a struggle because we have no government body enforcing these things. … Companies have the freedom to do whatever they want to do.”

So far, the North Carolina Department of Labor has issued no COVID-19 requirements for workplaces—and neither have many other states. Some are citing existing rules or executive orders as the basis for their enforcement, but workers’ rights advocates say many states have not been aggressive about inspecting workplaces or issuing citations, despite an overwhelming number of complaints, leaving workers in danger.

That oversight is in part because the federal Occupational Safety and Health Administration has issued no new rules during the pandemic. Twenty-nine states are under OSHA jurisdiction for private sector workers. The 21 states with their own workplace safety agencies must meet or exceed OSHA’s standards, but they haven’t been given a strong federal benchmark to follow. President-elect Joe Biden has said he will ask OSHA to reassess its decision not to issue emergency rules.

In a statement to Stateline, OSHA said that it has published recommendations for COVID-19 safety in the workplace, but its existing rules are sufficient to keep workers safe from the pandemic."

Four states—California, Michigan, Oregon and Virginia—have issued emergency standards and have changed their outreach and enforcement tactics to work better during the pandemic. Those rules cover things like testing, case reporting, personal protective equipment, physical distancing and ventilation.

Several other states are enforcing executive orders from a governor or a general duty clause that requires workplaces be “free from recognized hazards.” But worker advocates say even those requirements don’t go far enough.

The lack of strong rules and enforcement has fallen particularly hard on people of color, immigrants and low-wage workers who cannot work remotely and have faced the worst health and economic fallout from the pandemic.

Employees without legal documentation, who often work in the most dangerous workplaces for COVID-19, are particularly vulnerable. Many don't want to report their employers, advocates say, for fear of repercussions based on their immigration status.

Many state workplace safety agencies have seen a record number of complaints during the pandemic. Experts say such agencies are understaffed even in normal times, and the past year has been an unprecedented challenge. 

“All you can do is target the worst offenders,” said Deb Roy, president of the American Society of Safety Professionals, an Illinois-based trade organization for public and private sector workers.

“It’s basically to shame the worst offenders and try to keep the rest honest. From a resource standpoint, you're never going to have enough money or people to go after everyone.”

In North Carolina, advocates encouraged workers to complain to the state Department of Labor early in the pandemic, said Clermont Ripley, an attorney at the North Carolina Justice Center, a nonprofit that offers legal aid, outreach and policy advocacy on behalf of disadvantaged groups. “We ultimately stopped putting any effort into that because they got such disappointing responses. [Agency officials] just decided they weren’t going to investigate.”

Ripley and others have pushed for the agency to issue emergency standards specifically to combat the spread of COVID-19. But in a November letter to those advocates, the department’s then-Commissioner Cherie Berry, a Republican, said the coronavirus “has not been proven likely to cause death or serious physical harm from the perspective of an occupational hazard.”

Berry has since been succeeded by Josh Dobson, also a Republican, but the department has not yet indicated it will change its stance on the pandemic’s risk to employees. Officials assert that the coronavirus does not meet the legal threshold necessary to issue emergency rules.

“Going to that level of standard is a hard sell when it's a community-borne illness, not a workplace illness,” said Scott Mabry, an assistant deputy commissioner with the agency’s Occupational Safety and Health Division.

“Some of these states [with COVID-19 standards] may have problems in the long run with trying to hold up their enforcement activity.”

In states such as North Carolina, where unions are weak and membership is low, most employees don’t have the ability to fight for a safe workplace if state officials don’t act on their behalf.

“Ninety-seven percent of the workers in this state have to rely on their corporation to make the right decision,” Hill said. “That's what the Department of Labor is supposed to be there for—to protect worker safety.”

Advocates say some workers in North Carolina—particularly in the meatpacking industry—have been forced to work in close quarters, provided inadequate personal protective equipment and kept in the dark about outbreaks among their coworkers.

State records attribute 24 workplace fatalities to the pandemic, which many advocates believe is an undercount. The state has refused to disclose the location of outbreaks at meatpacking plants, saying that doing so could jeopardize its cooperative relationship with the industry.

“Workers are really vulnerable in North Carolina,” said Julia Solorzano, an attorney with the Southern Poverty Law Center, a civil rights nonprofit that specializes in public interest litigation.

“It's a scary environment where people stop turning up at work and nobody knows why. The workers I’ve spoken to do not have any faith that their workplace is going to protect them. We're not requiring their employers to take basic steps to protect them.”

Mabry, the North Carolina official, said most employers have been willing to follow COVID-19 suggestions voluntarily when contacted by the agency. He said worker complaints from meatpacking plants have dwindled over the past few months, and the industry has not reported any outbreaks in the past week.

But some business groups have said that new rules would hurt employers that are already struggling during the pandemic. The National Federation of Independent Business has sued California over its standards, alleging procedural missteps and claiming they would impose a “significant financial burden” on small businesses. The group’s Virginia branch has called the standards in that state “overly burdensome,” while also opposing a permanent extension of the rules.

The National Retail Federation has also sought to overturn the California standard, while the National Association of Manufacturers has said it’s begun outreach to the incoming Biden administration to give its input on a potential federal standard.

Overwhelmed by Complaints

Oregon’s state OSHA agency has received more than 18,000 complaints related to the pandemic alone, a tenfold increase from the complaints it receives in a normal year for all workplace issues combined. Officials have relied mostly on phone calls and letters to seek compliance from businesses. The agency has conducted 227 inspections, issuing citations for 104 safety violations. With 76 compliance officers on staff, that averages out to less than three inspections each over a period of nearly nine months.

Late last year, The Oregonian found that the agency had been warned about conditions for 23 employers that the Oregon Health Authority later found to be among the state’s 35 largest workplace COVID-19 outbreaks. Agency officials inspected only two of those businesses and issued no citations. 

“Do we wish we would have caught some of these red flags? Absolutely,” said Aaron Corvin, an agency spokesperson, in an interview with Stateline. “I'm not going to pretend we have all the resources we need to address all of these things. It might be easier to see the misses than the successes. Those are harder to see—who did we prevent from getting the disease?”

Corvin added that Oregon OSHA cannot ensure compliance from every employer, and said it’s “unreasonable” to expect the small agency to single-handedly keep all workers safe. He said the agency scaled back its enforcement presence early in the pandemic because it didn’t want officers to contribute to the spread of the disease.

California’s workplace safety agency has received nearly 10,000 workplace safety complaints during the pandemic. Michigan’s has gotten more than 12,000, while Washington’s has fielded a whopping 84,000 (those complaints came via a reporting page on the state’s public Emergency Operations Center website, while other states’ complaints have been solely initiated by workers). 

Officials in many states say they’ve assigned more staff members to help field the deluge of complaints. Agencies handle most of the complaints with a written notice to the employer, which is usually the end of the inquiry if the agency feels the business has provided an appropriate response. States conduct on-site inspections for only a small fraction of the complaints they receive. In some states, worker advocates say businesses are abusing that system. 

“I have never heard from a single person that the Industrial Commission of Arizona ever went out to take a look at what was going on,” said Shefali Milczarek-Desai, an assistant law professor at the University of Arizona who directs the school’s Workers’ Rights Clinic, which provides free legal aid to low-wage workers.

“Their position is that if the employer at all disputes what the claimant is alleging, they throw up their hands and say, ‘We can’t do anything about this.’ They have completely abdicated their responsibility to conduct an investigation.”

Arizona voters passed a ballot initiative in 2016 requiring employers to provide paid sick leave. In practice, though, Milczarek-Desai said, even during the pandemic, many workers are still being forced to choose between coming into work sick or losing their livelihoods.

“We have this great law on the books, but it's not really meaningful,” she said. “It might as well not exist if there isn't enforcement. It's hard not to feel like the state agency sees this as an expendable workforce.”

A spokesperson for the Industrial Commission of Arizona did not respond to a request for comment.

Outreach and Education

Even in states with strict workplace rules, officials acknowledge they can’t conduct on-site inspections for every complaint. California, which has the most robust COVID-19 safety standards in the country, has gone into “triage” mode for dealing with complaints, said Doug Parker, chief of the Division of Occupational Safety and Health, reserving inspections for the most serious cases.

California issued rules late last year that cover screening procedures, case reporting, masks, physical distancing and paid sick leave. The emergency standards also provide specific protections for farmworkers who have shared housing and transportation provided by an employer.

Cal/OSHA has refocused on providing education and outreach to employers. Instead of concentrating on time-intensive investigations, many of the department’s officers have been conducting sweeps of high-risk regions and industries with “compliance assistance” visits, helping businesses correct things on the spot and withholding enforcement action unless employers refuse to comply.

“We didn't have the capacity to respond in the traditional way to these events, but we were able to multiply our capacity to reach many more workplaces,” Parker said. “This is the first time we've had employers coming to us saying, ‘Tell us what to do.’”

California has conducted tens of thousands of those visits during the pandemic. It also has conducted more than 1,800 enforcement inspections, finding more than 250 violations and issuing $2 million in fines. The state has reported 406 workplace fatalities from COVID-19, which Parker said is an undercount, as many never get reported.

The California Chamber of Commerce complained in a letter that employers were not given enough time to meet the state's new standards before they went into effect. The group asserted that the state's testing requirements may be impossible for some employers to meet, and it called for officials to allow greater flexibility in quarantine periods if workers test negative. The Chamber also asked the agency to clarify its requirements for paid sick leave.

In Michigan, the state OSHA agency has provided millions of dollars in grant funding to help employers buy safety equipment and aid restaurants in expanding outdoor seating. Officials have focused on outreach events and pop-in consultations to give businesses the information they need. Sean Egan, the state’s director of COVID-19 Workplace Safety, said Michigan’s coronavirus standards have put officials in a much stronger position to keep workers safe.

“One of the challenges for many states is that they're relying on the general duty clause,” he said. “We issued emergency rules in October; that changes your ability to enforce COVID-19 restrictions, because now you have an official standard.”

The agency has issued more than 40 citations and investigated more than 30 workplace fatalities.

No Federal Guidance

Many worker advocates blame the federal government for not issuing new rules during the pandemic, which would automatically force state agencies to follow suit. 

“Without federal OSHA acting, a lot of these states have said, ‘It doesn't appear we need to do anything,’” said Rebecca Reindel, director of occupational safety and health for the AFL-CIO, a national federation of unions. “The example they're setting right now isn't leaving much for states to strive to.”

Some advocates feel that many states are more focused on reducing liability for corporations than keeping workers safe. Without federal guidance, many agencies don’t dare to defy the business leaders in their state, said Juley Fulcher, worker health and safety advocate with Public Citizen, a consumer advocacy nonprofit based in Washington, D.C.

“When these standards are being written, you get that big push from the business community not to put in requirements, and unfortunately that’s what happens,” she said. “It really does come down to business community pushback, business community connections. Big corporations have connections in government and nobody's holding them accountable.”

Worker groups have urged the federal OSHA to issue emergency rules, which the agency has declined to do.

“OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an [emergency temporary standard] is an appropriate remedy,” wrote Loren Sweatt, principal deputy assistant secretary of labor for the Occupational Safety and Health Administration, in a response to the AFL-CIO.

A court later rejected the union’s lawsuit seeking to force OSHA to set new rules. Over the course of the pandemic, the federal OSHA has issued citations from 300 coronavirus-related inspections, totaling nearly $4 million in fines.

Still, without specific pandemic rules and stronger enforcement, advocates say employers in many states know they’re unlikely to face consequences. 

“It's not even the honor system,” said Ripley, the North Carolina advocate. “The honor system suggests that there's something you're supposed to be doing and there might be a consequence. Here it's just guidelines and recommendations. The only thing they risk is being embarrassed.”