Department is now required to adopt workplace standards for COVID for healthcare workers – whether others will be covered remains in question
The U.S. Department of Labor is adopting new emergency standards to protect healthcare workers from COVID, while its North Carolina counterpart has gone to court to defend its position that the potentially fatal disease is not a workplace hazard.
The new emergency federal rules require states to either pass more stringent standards specific to COVID or adopt the federal ones. It’s still uncertain how the N.C. Department of Labor will proceed.
If the DOL refuses to abide by the federal directive, it could be stripped of its state-plan status – a change under which it would cede control of the program to the federal Occupational Safety and Health Administration.
Jennifer Haigwood, DOL director of communications, said in an email that the agency is studying the federal rule and will respond within 15 days.
“Since taking office in January, Commissioner [Josh] Dobson’s position on this matter has been that we are awaiting action from federal OSHA and that he is prepared to adopt a proposed standard that works for North Carolina employees and employers,” Haigwood wrote.
Fifteen months after the first OSHA complaint was filed in North Carolina, DOL still hasn’t enacted COVID-related health standards in the workplace.
DOL, which is currently responsible for enforcing safety standards in workplaces, also resisted an executive order proposed last year by Gov. Roy Cooper that would have increased COVID protections for migrant farmworkers and those in meat and poultry processing.
Cooper’s office backed down from issuing the executive order.
The agency argued there were no existing standards to enforce the rules. However, it also denied a petition filed by workers’ rights groups to adopt COVID-specific standards.
In a November 2020 letter denying the petition, former Labor Commissioner Cherie Berry said education, rather than enforcement, is more important.
Asked by Policy Watch whether DOL has studied the effectiveness of its education campaign, the agency declined to comment, citing an ongoing lawsuit filed by workers rights’ advocates. Those groups have sued DOL to compel the agency to go through the rulemaking process for COVID-related protections.
Berry had argued that COVID-19 is widespread and does not constitute a specific workplace hazard. She also falsely claimed most deaths occurred among people over 65 years old, whom she described as no longer in the workforce.
Clermont Fraser Ripley, a staff attorney at North Carolina Justice Center said it’s irresponsible to brush off COVID as unrelated to workplaces. More than a quarter of the 91 workplace fatalities in North Carolina in 2020 were attributed to COVID, according to DOL data. Ripley also noted that some frontline employees work well beyond age 65.
(Disclosure: The Justice Center, which represents the plaintiffs in the litigation, is the parent organization of NC Policy Watch.)
Dr. Zack Moore, a state epidemiologist with the N.C. Department of Health and Human Services, said his department is collecting more data to study the spread of coronavirus in occupational settings.
A Charlotte Observer review of death records found that more than 1,000 working-age North Carolinians died in 2020 from COVID-19. Health care, education, construction, food service, government and transportation led the death counts by industry.
“There are particular occupations, particular industries that are at higher risk,” Moore said. He added that the historically marginalized workers in these industries are disproportionately affected.
Moore said that many other measures can still help prevent communicable diseases besides COVID-19. For example, flexible personnel policies and paid sick leave discourage employees from working when they’re ill, which can spread disease.
The workers’ rights petitioners asked NCDOL to mandate employers to develop a “COVID-19 Preparedness and Response Plan,” provide personal protective equipment and provide teleworking options or adopt measures to ensure physical distancing of workers. This includes staggered shifts and drive-through and delivery services.
North Carolina DHHS Occupational and Environmental Epidemiology Branch Chief Virginia Guidry said public health officials visited sites and held consultation sessions with employers, stressing the importance of disease prevention measures. This also included improving building ventilation.
However, she said, DHHS could provide only guidance. Enforcement is up to DOL.
Education over enforcement
“Litigation enforcement is a last resort … it’s a carrot and stick,” said Victoria Voight, a special deputy attorney general at the N.C. Department of Justice. “The commissioner decided to emphasize the carrot, but then bring up the stick when she had no other choice.”
In response, Ripley said, “I think when there is a deadly virus spreading in workplaces that the state wasn’t prepared for, that none of us were prepared for, that’s the time for the stick.”
However, as Policy Watch previously reported, enforcement was lacking. A Policy Watch review of cases found that for some poultry plants, workplace complaints to DOL did not trigger inspections that could have prevented deaths. And workers continued to file complaints against the same employers even after DOL investigated possible COVID-related deaths.
State records show that employers called workers back to the job even if they tested positive, and failed to sanitize the surfaces at the facility. Among the businesses listed in the complaints are major employers such as Lowe’s Home Centers and Tyson Foods.
Voight acknowledges some employers have been noncompliant in protecting their workers. However if DOL had enacted the standards proposed by the petitioners, she said, the agency “would immediately have been sued. And it would have lost.”
The basis for Voight’s assessment is unclear, though former Commissioner Berry claimed at one point that adoption of a an enforceable rule would “create conflicting interests” with the department’s educational efforts.
Unlike some other states, NCDOL has no internal board to vote on any proposed regular standards. The department does have the authority to enact emergency standards, but Berry chose not to.
Berry also argued that the governor would be exceeding his authority if he ordered DOL to enforce new standards. She wrote that such power belongs to the legislative branch.
The legislature, however, has apparently displayed little inclination in that direction. Haigwood, director of communications at DOL, said no state legislators have contacted the agency to propose any rulemaking changes to protect workers’ safety during COVID.
Fourteen states have adopted comprehensive COVID worker safety protections by way of executive orders or safety standards, according to the National Employment Law Project. The Virginia Department of Labor made the temporary standards permanent earlier this year.
A Wake County Superior Court judge is expected to enter a ruling as to whether the state has to engage in rulemaking with plaintiffs.
Even though rulemaking can take as long as a year — and vaccines are available — some workers have yet to be vaccinated. COVID-related workplace complaints continue to be filed and found valid, according to federal OSHA data.
“Whether it’s COVID or some future virus, workers need OSHA to pass enforceable standards so that companies take steps to protect workers from airborne diseases,” said MaryBe McMillan, president of the NC State AFL-CIO.