Millions of workers and businesses across the state could be affected as the N.C. Department of Labor considers actions leading to a set of COVID-19 workplace standards.
The U.S. Occupational Safety and Health Administration announced plans Sept. 9 to issue an emergency standard that would require private employers with 100 or more employees to ensure workers either get vaccinated or test negative weekly for COVID-19.
The rule would impact more than 80 million workers in private-sector businesses, according to the White House.
At the state level, a coalition of advocacy groups will submit a revised petition to the N.C. Department of Labor that would mandate additional COVID-19 standards for workers on farms and meat processing plants. Several of the petition’s standards would apply to all private employers across the state.
If the Labor Department accepts the petition, migrant workers’ employers would have to comply with a rigid set of COVID-19 workplace standards, such as providing transportation to testing sites, paid time off for employees to be tested and potential expanded housing for workers.
Other proposed standards would allow any employee in the state to refuse to work if workplace conditions are unsafe. Employers would not be able to terminate employees for the refusal.
The Lawyers’ Committee for Civil Rights Under Law, the N.C. Justice Center and the Southern Poverty Law Center originally filed a petition on behalf of several organizations from the N.C. Farmworker Advocacy Network in October 2020.
Current NC workplace standards
As of March 2020, the state Labor Department had not issued any COVID-19 workplace safety standards of its own. The department adopted OSHA’s COVID-19 Emergency Temporary Standard for health care professionals in July, it announced, but no other standards.
Labor Commissioner Josh Dobson has the power to issue a temporary emergency standard for COVID-19 workplace safety but has not done so. Jennifer Haigwood, director of communications for the Department of Labor, declined to answer a question on whether Dobson thinks COVID-19 poses a workplace threat.
“Once federal OSHA releases the official rule, NCDOL’s Occupational Safety and Health Division will review the rule and make a determination at that point whether and/or how the rule will apply to North Carolina employers,” Haigwood said.
Carol Brooke, senior attorney at NCJC, thinks the lack of mandates has left employers and employees confused about workplace safety.
“Employers still have a great deal of uncertainty in terms of what they’re required to do to protect workers,” she said, adding that no clear requirement exists for them to figure out what they should do.
Likewise, employees have difficulty raising issues with employers because they cannot reference what precautions their employers must follow, she said.
Despite vaccines being widely available and more workplaces implementing their own guidelines, farmworkers and meat processing plant workers still encounter COVID-19 on a regular basis, said Lariza Garzón, executive director of the Episcopal Farmworker Ministry in Harnett County.
The nonprofit works closely with farmworkers to provide services like mental health support, immigration resources and food relief.
“You hear about people dying weekly,” she said “Everybody in the community knows somebody who is dead, somebody who is hospitalized. From the beginning, this community had a disproportionate impact.”
A lengthy legal battle gets longer
The battle to get the petition before the Labor Department has lasted a year, with the coalition initially filing in October 2020.
On Nov 6, then-Labor Commissioner Cherie Berry responded to the petition with a letter arguing that COVID-19 was not a serious workplace threat that required regulatory action from the department, as reported by The News & Observer.
The petition received a second chance last month, on Aug. 8, after Superior Court Judge G. Bryan Collins of Wake County, ruled that the Labor Department must consider a revised petition.
In addition to considering a revised petition, the department must provide feedback pointing out any deficiencies or errors in the original petition, Collins ruled.
The drawn-out process has left Garzón disappointed with the state.
“But what we want are protections that can be enforced, that people can report and will actually save lives,” she said. “When it comes to valuing the labor and lives of those that bring food to our tables, unfortunately, that seems to not be the priority.
Next steps for the revised petition
The Labor Department returned the petition to the advocacy groups on Sept. 3, citing three chief deficiencies in the proposed standards. The feedback was less than what the coalition had expected, Brooke said.
The Labor Department asked for further information on the standard’s impact on the state’s economy, local governments, employers and businesses.
Aside from these critiques, the coalition needs to update the petition, Brooke said. At the time of the filing a year ago, no vaccines existed, and the federal government had not issued any workplace safety rules.
The group is evaluating how the newly announced OSHA rule will fit in with its requests, as the federal rule will overlap with its proposal.
Brooke did not provide a timeline for submitting the revised petition but said the group will return it as soon as possible. She expressed confidence that the group will be able to respond to officials’ concerns.
OSHA rules coming soon
Once the federal OSHA releases a rule, the state OSHA has up to 30 days to either adopt the rule verbatim or adopt federally approved measures. North Carolina is one of the few states that has its own federally approved workplace safety agencies with this flexibility.
Requiring vaccination or weekly testing is a step in the right direction to reduce the transmission of COVID-19, said Catie Armstrong, a spokesperson for the N.C. Department of Health and Human Services.
“Vaccination is our best tool to prevent the spread of COVID-19, and frequent testing can identify cases early and limit the number of exposures,” she said.
“Policies like these, in addition to other protection measures, encourage vaccination and make these settings safer by reducing the potential for workplace exposure and community transmission of the virus.”
Workplace mandates are only the first step toward ensuring workers’ safety, Garzón said. Unless the state can find a way to enforce the guidelines and hold employers accountable, she thinks the mandates will be useless.
In particular, she worries that state agencies are understaffed and unable to respond properly to the high volume of complaints. As a result, COVID-19 workplace complaints could be underinvestigated, she said.
Earlier in the year, the Labor Department reported 26 workplace fatalities related to COVID-19 in 2020. From October 2020 to August 2021, the department reported 36 workplace fatalities related to COVID-19.
The Labor Department provided data on complaints received by the state’s OSHA division between March 2020 and Aug. 31, 2021. The division received 4,694 complaints and conducted 109 inspections. The NCDOL houses the state’s OSHA division.
Advocates argue that the gap between complaints and reported fatalities represents a severe undercounting of COVID-19 workplace-related fatalities.
Hunter Ogletree, director of the Western North Carolina Workers Center, said he found the number of workplace fatalities surprisingly low given how many complaints had been filed.
“It’s a little bit hard to wrap your head around that number,” he said. “I can’t imagine that number is right.”
Marcy Goldstein-Gelb, co-executive director of the National Coalition for Occupational Safety and Health, argues that a lack of systemic documentation for COVID-19 in the workplace partially accounts for the low number.
“There’s been such inadequate recording of workers who experienced COVID-19 or death,” she said. “There was very little documentation if somebody went to work sick or somebody was not at work. It is a woefully inaccurate estimate given the lack of any systemic documenting.”
The state’s OSHA division determined 2,214 of all complaints to be valid and 2,480 to be invalid. The division deems a complaint valid if the complaint alleges that a hazard exists and/or that an OSHA standard has been violated, Haigwood said.
After an employee files a complaint, the state’s OSHA division has the option to send a letter to the employer asking for further information. If the state finds the employer’s response unsatisfactory, the agency might send an inspector for an on-site inspection.
The division also sends out an inspector after employers or employees report a workplace fatality or accident.
“It was made clear from the beginning that OSHA was not going to take any action,” Goldstein-Gelb said. “This system of contacting employers and asking how things are going like you’re a buddy of the enforcement agency and relying on that to address this deadly virus … was a failure.”
DHHS maintains a weekly log of COVID-19 clusters. However, only congregate living settings, schools and child care facilities are required to report clusters or outbreaks.
Private employers that do not meet this criterion are not required to report COVID-19 clusters, Armstrong said.
The state’s OSHA division is spread thin and simply does not have enough inspectors to deal with the thousands of complaints as indicated by the total number of inspections, Goldstein-Gelb said.
The state’s OSHA division employs 114 compliance officers, split between 68 safety compliance officers and 46 health compliance officers.
The state inspectors are responsible for almost 4.5 million employees among about 280,000 establishments. It translates to about one inspector for every 40,000 employees or one inspector for about 2,450 establishments.
“(NCOSHA division officials) have to be willing to use the tools at their disposal and preferably enact stronger protections,” she said.
“So, what are you going to do with these protections that workers have rights to a safe workplace. That means having enough personnel power to do that enforcement and respond to these complaints.”
The division does not inspect every business on an annual basis, Haigwood said.
Instead, the division analyzes workplace injury and illness data to focus on high-hazard job sites, as opposed to low-hazard sites like office buildings, she said.
When asked whether the department has enough inspectors, Haigwood responded that the agency would never turn down additional inspector positions but would prefer to fill all existing positions before adding more.
As of Sept. 17, 29 of the 114 compliance officer positions were vacant.