Opinion

With OSHA as an Employer Advice Columnist, States and Cities Should Protect Workers from COVID-19

By Debbie Berkowitz & Terri Gerstein
August 10, 2020 at 5:00 am ET

As parts of the country take baby steps toward reopening, there’s a fundamental conundrum: Restarting the economy requires opening businesses, but workplaces have been a primary site of COVID-19 infection clusters (which then spread to families, friends, neighborhoods and communities). The federal government has failed to protect workers and shows little sign of changing, but recent developments in states and cities — like a groundbreaking Virginia COVID safety rule that took effect last month — give reason for hope. 

Workers across the U.S. economy have been hit hard with COVID infection. More than 124,000 health care workers have been infected with COVID-19, and at least 600 have died, according to the Centers for Disease Control and Prevention. More than 54,000 meatpacking, food processing and farm workers have tested positive, and at least 232 have died. Workers in a range of industries have been infected: thousands of transit workers, grocery workers, correctional officers and others — from workers in a Massachusetts Walmart to those in Alaska seafood processing plants

While many workers are speaking out and organizing for safer workplaces, communities of color are paying the heaviest price: Black and Latinx workers and other workers of color, including immigrants, are more likely to be in front-line jobs

Meanwhile, the federal Occupational Safety and Health Administration has horrendously failed in enforcing the law, instead serving as an advice columnist for employers, issuing a smorgasbord of vague guidance and recommendations that employers should “strive” to implement, if possible. To date, the agency has issued only a handful of citations related to COVID-19. Federal OSHA has failed to issue COVID-specific mandates, even in the face of a federal lawsuit (so far unsuccessful) filed by the AFL-CIO.

This combination — workers getting sick and OSHA’s conspicuous absence — doesn’t seem to offer much hope. But Virginia recently showed a possible way forward, last month becoming the first state to enact a comprehensive COVID-specific workplace safety standard. Oregon has announced plans to be next. (California already had a rule about airborne diseases before the pandemic, covering only health care workers and first responders.)  

More states should follow their lead. States that have their own workplace safety and health agencies (as over 20 do) should pass COVID-specific standards, like Virginia did. And elsewhere, in the absence of OSHA enforcement, and as the economy starts to re-open, state and local leaders should protect public health by making sure that jobs are safe. 

What would a robust state and local response look like? Many important steps have already been taken throughout the country. 

Fourteen states — including Illinois, Michigan and Minnesota — have issued comprehensive  executive orders or mandates that will help mitigate the spread of COVID-19 in the workplace. These include: requiring employers to provide face coverings, personal protective equipment for high-risk workplaces, work spaces with social distancing, access to hand-washing facilities and sanitizers and deep cleaning after COVID infections are discovered. Some orders require employers to inform workers after cases are found in their workplace. 

Employers should be legally required to have a COVID-19 preparedness plan. Virginia’s new standard requires high-risk, and some medium-risk, employers to create a plan and designate a person to implement it. Minnesota has adopted a similar requirement, issuing a template to help employers comply. (New York provides a template, too.) This governmental “nudge” leads employers to systematically think through workplace safety. 

Some states have also addressed specific industries. Illinois, Michigan and Minnesota enacted additional obligations for meat and poultry plants. The Michigan Department of Health and Human Services last week issued an order requiring agricultural employers to provide Covid-19 testing for farmworkers. Illinois issued a summary of requirements for temporary agencies. 

Workers must be able to raise workplace safety concerns without fear of being fired. Indeed, a recent study found a marked reduction in workplace injuries when states allowed such workers to file wrongful discharge lawsuits. Virginia’s new standard contains anti-retaliation provisions, and several jurisdictions have legislatively strengthened such protections, including Colorado, Philadelphia and Chicago. Lawmakers should also enact paid sick days laws, as New York, Colorado and a number of cities have done, to fill the gaping holes in the federal Families First Coronavirus Response Act, which excludes millions of workers. And states should allow people to receive unemployment insurance if a job offer is not suitable because the workplace is unlawfully hazardous, as Ohio and North Carolina are doing. 

States and localities may hesitate to take on what is, in many cases, a new role for them. But government exists to serve the people and to meet urgent and ever-changing needs. The moment calls for bold leadership. States can fund, or more robustly fund, enforcement of workplace safety laws, or cross-train state agency employees if funding is low. They can require employers to report all COVID cases within 24 hours to state health departments, as Virginia’s new standard does. They can publicize their enforcement; research shows that publicity deters violations. 

Given the scope of the current crisis, states and cities can’t completely fill the void left by a nonfunctioning OSHA. But we’ve all seen the charts showing state variations in COVID rates. State and local leadership unquestionably can make a meaningful difference in the health of our communities. Keeping workers safe is one of the most important actions that government leaders can take to stop the spread of the virus — and enable long-term economic recovery. It won’t be easy; politics is complex, and corporate interests will fight tooth and nail against new workplace protections. But people’s lives are in the balance. It would be government malpractice not even to try. 

 

Debbie Berkowitz is the director of the Workplace Safety and Health Program at the National Employment Law Project, and is the former chief of staff for the Occupational Safety and Health Administration (OSHA).  Terri Gerstein is the director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program and is a senior fellow at the Economic Policy Institute; she was formerly the Labor Bureau chief in the New York State Attorney General’s Office. 

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