States are increasingly bypassing the federal government and imposing their own rules to protect workers from the coronavirus, creating a patchwork of regulations that could serve as a blueprint for new national standards promised by President-elect Joe Biden.
Oregon last month began requiring employers to supply masks, develop infection control plans and notify staff of ill coworkers. California rushed out 21 pages of business mandates covering everything from proper ventilation and social distancing to testing, reporting and quarantine procedures. In New Jersey, more than 1,000 complaints of alleged workplace health and safety violations have poured in from workers in the four weeks since the state enacted its own new safety program.
In all, 14 states have instituted their own comprehensive restrictions as the federal worker safety watchdog, the Occupational Safety and Health Administration, has come under fire for its lax enforcement during a pandemic that has turned America’s most mundane jobs into dangerous, frontline deployments.
Labor leaders and other advocates for tougher rules say the hands-off approach taken by President Donald Trump’s administration has put workers in harm‘s way, forcing the states to step in.
“It would be pretty hard to fall on your face as hard as OSHA has during the pandemic,” said Maggie Robbins, an occupational health specialist at Worksafe, a statewide workplace advisory group in California that has pushed for new rules. “It’s easy to outperform OSHA right now.”
Experts say Biden could borrow heavily from the states that have crafted their own policies, and the most stringent local requirements could give the new administration a baseline for those standards. But negotiating with industry groups could take months, and labor leaders say any delay will only result in more cases and, in turn, more deaths.
A report released Nov. 19 found that up to 8 percent of the early U.S. coronavirus cases could be rooted in outbreaks among workers at meatpacking plants. Large outbreaks of the virus, which has killed more than 250,000 Americans, continue to be linked to employers that hold important positions in the nation’s supply chain.
Some state-level business groups acknowledged the need for a nationwide standard, saying a jumble of state-by-state — and, in places, town-by-town — regulations has been difficult for employers to navigate. But, they say, the vast majority of companies are doing the right thing, and imposing too many regulations will hinder the country’s economic recovery.
“If a national standard isn’t feasible or isn’t well-written, it could be worse than the presently evolving patchwork,” said Rob Moutrie, policy advocate and workplace safety lead for the California Chamber of Commerce.
Critics say OSHA has done little to punish companies when their workers get sick or even die from the coronavirus. While the agency has cited more companies for coronavirus-related risks over the past several months, large corporations have received meager fines, and OSHA has used its special enforcement powers far more leniently than previous administrations.
Megan Sweeney, a spokesperson for the Department of Labor, said DOL is committed to protecting the country’s workforce during the pandemic, and OSHA has been “working around the clock to that end.”
OSHA has preexisting requirements and standards that are enforceable and has issued guidance for employers, including additional resources for high-risk industries, like meat and poultry processing. Through Nov. 26, the agency has issued citations arising from 255 inspections for violations related to coronavirus, resulting in proposed penalties totaling $3,403,139.
Sweeney also said that earlier this year, a panel of the U.S. Court of Appeals for the D.C. Circuit concluded that OSHA reasonably determined that a new emergency temporary standard is not necessary.
“Since that court ruling, OSHA has continued to rely on its preexisting authorities to keep America’s workplaces safe,” Sweeney said. “OSHA continues to investigate every complaint about workplace safety.”
While federal OSHA sets national standards, states are allowed to run their own occupational health and safety plans, so long as they are at least as stringent as the federal government’s standard. About half the states have their own plans. Those that don’t have separate plans found creative ways to enforce standards, using executive orders and rulemaking to set new rules without OSHA approval.
The new rules adopted by states are consistent in mandating things like social distancing, mask wearing and improved ventilation in workspaces. States are also making it easier for workers to know their rights and report any violations. Many states have taken punitive action on their own and imposed some hefty fines where federal OSHA has not.
State-level business groups say that while employers want to keep their workers safe, some of these restrictions have been cumbersome and at times unrealistic, particularly for smaller businesses that are struggling to stay afloat. There are not just the added costs of protective supplies, but the increased labor costs as well: Workers are being redirected to police how many people are in a store and routinely wipe down surfaces.
One way that Oregon made these regulations easier for businesses is by phasing in requirements. The state adopted a temporary rule in November that has several elements that employers must comply with, including developing infection control plans, improving ventilation and notifying workers when someone contracts the coronavirus.
Paloma Sparks, Oregon Business Industry vice president and general counsel, said her organization convinced the state to gradually implement new rules instead of imposing them all at once. Some of the requirements, like servicing HVAC systems, can be challenging for small businesses that won’t have someone on staff to do the work.
“We want to make sure our employees are safe and healthy, and we’ve been very clear about that point throughout,” Sparks said. “The difficulty is that at this point in the pandemic, you’ve got businesses that are really struggling, they have limited resources, their staff are exhausted.”
Graham Trainor, president of the Oregon AFL-CIO, said he is hopeful the requirements will make a difference. Oregon had previously issued Covid-19 recommendations for employers to follow, but his union has seen countless examples of workers being “unnecessarily and dangerously” exposed to the virus.
The Oregon Health Authority found that, to date, workplace outbreaks of coronavirus have resulted in 11,139 cases and 61 deaths.
“There’s no question that there’s a correlation between cases on the rise, deaths from the virus, and the lack of workplace protections,” Trainor said.
Debbie Berkowitz, a senior policy adviser for OSHA under President Barack Obama, said the incoming Biden administration should look to Virginia, the first state to issue emergency rules, and California, the most recent state to take action, as guides for creating national policy. Those states have some of the more comprehensive policies. She urged Biden to draft new standards as soon as possible.
“It’s an emergency,” said Berkowitz, who now works at the National Employment Law Project. “The only way we’re going to mitigate this disease is if we protect the workers at work.”
California has just implemented a stringent, 21-page emergency standard that covers everything from social distancing and ventilation protocols to employee notification and testing following an outbreak.
Robbins of Worksafe, the California group that lobbied for the emergency standard, said the state needed something that was more easily enforceable and gave clear expectations for employers.
“It’s one thing to say, ‘Drive an appropriate speed for the conditions on the road,’” Robbins said. “It’s another to say, ‘You should go 35 miles per hour, no faster.’”
Some business groups have pushed back on the speed of California’s emergency rulemaking. Industry groups are already considering lawsuits to block the emergency regulation.
In New Jersey, Democratic Gov. Phil Murphy released guidelines earlier in the pandemic related to worker protection. But a coalition of labor groups waged a six-month campaign urging the governor to take further action to mandate these rules, and create a process in which workers can actually report violations. Murphy eventually committed to signing an executive order that did just that in late October.
“Like so much else where Washington has failed to lead, New Jersey will step up to fill the void,” Murphy said.
Rebecca Rainey contributed to this report.