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OSHA Issues Emergency Rule for Healthcare Employers and Updates Guidance for Other Employers

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On January 21, 2021, one day after his inauguration, President Biden signed an executive order directing the Occupational Safety and Health Administration (OSHA) to consider issuing a broad emergency temporary standard (ETS) on COVID-19 in the workplace.  But because COVID-19 cases have decreased significantly since January, on June 10, 2021, OSHA issued an ETS applicable to healthcare employers only.  For other employers, like those in manufacturing, construction, and retail, the agency simply updated its existing voluntary guidance.

Healthcare Employers

The ETS mandates virus protections in healthcare workplaces, defined as “all settings where any employee provides healthcare services or healthcare support services,” with several exceptions.  OSHA published a flow chart to help employers determine if they are covered by the ETS.  Where a healthcare setting is embedded in a non-healthcare facility, such as a medical clinic located in a manufacturing plant or retail store, the ETS applies only to the embedded healthcare setting and not to the remainder of the physical location.  The ETS does not apply to the provision of first aid by an employee who is not a licensed healthcare provider.

Some of the key requirements of the new rule for covered employers are to:

  • Develop a COVID-19 plan (in writing for employers with more than 10 employees) that includes designation of a safety coordinator, a workplace-specific hazard assessment, and policies and procedures to minimize the risk of transmission of COVID-19 to employees.
  • Limit and monitor points of entry to settings where direct patient care is provided; screen and triage patients, clients, and other visitors and non-employees; and implement patient management strategies.
  • Provide and ensure each employee wears a facemask when indoors and when occupying a vehicle with other people for work purposes; provide and ensure employees use respirators and other personal protective equipment during exposure to people with suspected or confirmed COVID-19, and for aerosol-generating procedures on a person with suspected or confirmed COVID-19.
  • Keep people at least 6 feet apart when indoors.
  • Install cleanable or disposable physical barriers at each fixed work location in non-patient care areas where employees are not separated from other people by at least 6 feet.
  • Follow standard practices for cleaning and disinfection of surfaces and equipment in accordance with Centers for Disease Control and Prevention (CDC) guidelines in patient care areas, resident rooms, and for medical devices and equipment; in all other areas, clean high-touch surfaces and equipment at least once a day and provide alcohol-based hand rub that is at least 60% alcohol or provide readily accessible handwashing facilities.
  • Ensure that employer-owned or controlled existing HVAC systems are used in accordance with manufacturer’s instructions and design specifications for the systems, and that air filters are rated Minimum Efficiency Reporting Value (MERV) 13 or higher if the system allows it.
  • Provide reasonable time and paid leave for vaccinations and vaccine side effects.

The ETS exempts fully vaccinated employees from the facemask, physical distance, and barrier requirements in well-defined areas if the employer determines there is no reasonable expectation that another person with suspected or confirmed COVID-19 will be present.

The ETS could take effect within days.  Once it goes into effect, covered employers must comply with most of the requirements within 14 days, but they will have 30 days to comply with requirements that could require physical changes to workspaces and buildings, like those involving barriers and ventilation.  The emergency rule will be limited to a duration of six months.

Pending adoption of the ETS in state plan states like South Carolina and North Carolina that have not enacted their own COVID-19 standards, employers can expect state OSHA agencies to take the requirements of the ETS into account in determining whether employers are complying with the General Duty Clause (GDC).  The GDC, in effect, requires employers to provide a safe workplace for employees.  State plan states must adopt standards that are “at least as effective” as OSHA’s.

Other Employers

On June 10, 2021, OSHA also updated its previously issued COVID-19 guidance applicable to all employers by adding references to the CDC’s recent recommendations for fully vaccinated people and addressing how to protect workers who are unvaccinated or are otherwise deemed to be at high risk of infection or serious illness.

According to the updated guidance, employers not covered by the ETS should consider implementing “multi-layered interventions” to protect workers, including:

  • “Grant[ing] paid time off for employees to get vaccinated.”
  • “Instruct[ing] infected, unvaccinated workers who have had close contact with someone who tested positive for COVID-19 and all workers with symptoms to stay home.”
  • “Implement[ing] physical distancing for unvaccinated and otherwise at-risk workers in all communal areas.”
  • “Provid[ing] unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.”
  • “Educat[ing] and train[ing] workers on your COVID-19 policies and procedures using accessible formats and in language they understand.”
  • “Suggest[ing] that unvaccinated customers, visitors, or guests wear face coverings.”
  • “Maintain[ing] ventilation systems.”
  • “Perform[ing] routine cleaning and disinfection.”
  • “Follow[ing] other applicable mandatory OSHA standards.”

Whether covered by the ETS or the updated guidance, employers should review the latest information from OSHA and make any necessary adjustments in their compliance programs.

This blog originally appeared at Nexsen Pruet on June 11, 2021. Reprinted with permission.

About the Author: David Dubberly is an award-winning attorney who chairs Nexsen Pruet’s Employment and Labor Law Group and co-chairs the firm’s International Law Team. 

 


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Amazon is crushing Walmart in one metric: The rate of serious injuries in its warehouses

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Interview with Laura Clawson, Daily Kos Contributing Editor | Smart  Bitches, Trashy Books

Immediately following a report that Amazon’s workplace injury rates were significantly higher than those of its top rivals, the online retail giant announced a tweak to its notorious “time off task” metric, which workers and advocates say is responsible for the punishing pace that leads to many injuries. The Washington Post looked at Occupational Safety and Health Administration (OSHA) data and found that Amazon warehouses have a rate of 5.9 serious injury incidents per 100 workers, which is nearly double the rate of other retail warehouses and more than double the rate for Walmart warehouses. This despite a decrease in serious injury rates at Amazon warehouses after the company paused performance tracking to allow workers time to wash their hands and sanitize work areas during the pandemic.

In response to the Post’s questions, Amazon detailed an array of efforts to improve injury rates at its warehouses, including “ergonomics programs, guided exercises at employees’ workstations, mechanical assistance equipment, workstation setup and design, and forklift telematics and guardrails—to name a few,” a company spokeswoman told the newspaper. What those efforts notably did not include was relaxing the speed requirements placed on workers that lead to so many of those injuries, at least outside of pandemic safety measures.

But on Tuesday, via a blog post by Dave Clark, CEO of its worldwide consumer division, the company made two announcements clearly designed to garner good publicity: It will stop testing employees for marijuana except for those in positions regulated by the Department of Transportation and will support federal marijuana legalization, and it’s changing how “time off task” is calculated. The time off task metric “can easily be misunderstood,” Clark claimed, insisting that its primary goal “is to understand whether there are issues with the tools that people use to be productive, and only secondarily to identify under-performing employees.”

This is not how Amazon employees experience that, and in any case, constantly finding ways to make the “tools that people use to be productive” go faster is another way to make the workers go faster. “Starting today,” Clark announced, “we’re now averaging Time off Task over a longer period to ensure that there’s more signal and less noise—reinforcing the original intent of the program, and focusing Time off Task conversations on how we can help.”

That’s not a big enough change, said Christy Hoffman, general secretary of UNI Global Union, in a statement: “After months of intense worker activity at Amazon workplaces everywhere, the giant tech is acknowledging that it must at least tweak its management system to soften the blow on workers who have the occasional ‘bad day’. But the basic system remains the same. This small step is welcomed but insufficient. What workers need is a real seat at the table and their voices heard.”

Let’s circle back to the top of this post and remember, we’re talking about a business with a serious injury rate nearly twice that of the industry as a whole and more than twice that of Walmart (which is not exactly known as a great employer). A small tweak is not going to do it. 

Amazon’s injury data also points to the need for stronger government enforcement. A DuPont, Washington, Amazon warehouse sported a serious injury rate of 23.9 per 100 workers in 2020, up from an already high 7.2 serious incidents per 100 workers in 2017. For those conditions, Amazon was cited by Washington State’s Department of Labor and Industries, which specifically identified the following: “There is a direct connection between Amazon’s employee monitoring and discipline systems and workplace MSDs [musculoskeletal disorders].” But the fine was just $7,000. Why would Amazon take the need for change seriously if that’s how much it costs? Instead, the company is trying to deal with its high injury rates as a public relations problem by announcing the smallest possible change to its policy. 

This blog originally appeared at Daily Kos on June 2, 2021. Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor.


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Amazon makes tiny tweak to ‘time off task’ policy following report on high injury rates

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Interview with Laura Clawson, Daily Kos Contributing Editor | Smart  Bitches, Trashy Books

Immediately following a report that Amazon’s workplace injury rates were significantly higher than those of its top rivals, the online retail giant announced a tweak to its notorious “time off task” metric, which workers and advocates say is responsible for the punishing pace that leads to many injuries. The Washington Post looked at Occupational Safety and Health Administration (OSHA) data and found that Amazon warehouses have a rate of 5.9 serious injury incidents per 100 workers, which is nearly double the rate of other retail warehouses and more than double the rate for Walmart warehouses. This despite a decrease in serious injury rates at Amazon warehouses after the company paused performance tracking to allow workers time to wash their hands and sanitize work areas during the pandemic.

In response to the Post’s questions, Amazon detailed an array of efforts to improve injury rates at its warehouses, including “ergonomics programs, guided exercises at employees’ workstations, mechanical assistance equipment, workstation setup and design, and forklift telematics and guardrails—to name a few,” a company spokeswoman told the newspaper. What those efforts notably did not include was relaxing the speed requirements placed on workers that lead to so many of those injuries, at least outside of pandemic safety measures.

But on Tuesday, via a blog post by Dave Clark, CEO of its worldwide consumer division, the company made two announcements clearly designed to garner good publicity: It will stop testing employees for marijuana except for those in positions regulated by the Department of Transportation and will support federal marijuana legalization, and it’s changing how “time off task” is calculated. The time off task metric “can easily be misunderstood,” Clark claimed, insisting that its primary goal “is to understand whether there are issues with the tools that people use to be productive, and only secondarily to identify under-performing employees.”

This is not how Amazon employees experience that, and in any case, constantly finding ways to make the “tools that people use to be productive” go faster is another way to make the workers go faster. “Starting today,” Clark announced, “we’re now averaging Time off Task over a longer period to ensure that there’s more signal and less noise—reinforcing the original intent of the program, and focusing Time off Task conversations on how we can help.”

That’s not a big enough change, said Christy Hoffman, general secretary of UNI Global Union, in a statement: “After months of intense worker activity at Amazon workplaces everywhere, the giant tech is acknowledging that it must at least tweak its management system to soften the blow on workers who have the occasional ‘bad day’. But the basic system remains the same. This small step is welcomed but insufficient. What workers need is a real seat at the table and their voices heard.”

Let’s circle back to the top of this post and remember, we’re talking about a business with a serious injury rate nearly twice that of the industry as a whole and more than twice that of Walmart (which is not exactly known as a great employer). A small tweak is not going to do it. 

Amazon’s injury data also points to the need for stronger government enforcement. A DuPont, Washington, Amazon warehouse sported a serious injury rate of 23.9 per 100 workers in 2020, up from an already high 7.2 serious incidents per 100 workers in 2017. For those conditions, Amazon was cited by Washington State’s Department of Labor and Industries, which specifically identified the following: “There is a direct connection between Amazon’s employee monitoring and discipline systems and workplace MSDs [musculoskeletal disorders].” But the fine was just $7,000. Why would Amazon take the need for change seriously if that’s how much it costs? Instead, the company is trying to deal with its high injury rates as a public relations problem by announcing the smallest possible change to its policy. 

This blog originally appeared at DailyKos on June 2, 2021. Reprinted with permission.

About the author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and a full-time staff since 2011, currently acting as assistant managing editor.


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WHICH STATES AND CITIES HAVE ADOPTED COMPREHENSIVE COVID-19 WORKER PROTECTIONS?

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14 STATES HAVE ADOPTED COMPREHENSIVE COVID WORKER SAFETY PROTECTIONS SO FAR

As the COVID-19 pandemic surges in the United States, workers have continued to protest and organize for their safety and health—but action is needed at all levels of government, starting with the top. To date, the Trump administration—specifically, the Occupational Safety and Health Administration—has resisted issuing any workplace safety standards or requirements to protect workers from COVID-19 in the workplace. In the absence of federal leadership, some governors and state health departments have stepped up to expand worker protections.

OSHA has resisted issuing any workplace safety standards or requirements to protect workers from COVID-19 in the workplace.

Some states have issued executive orders with very specific worker protection requirements, and Virginia issued a first-in-the-nation Emergency Temporary Standard to protect workers. Oregon and Michigan also have issued emergency standards. Other states have issued guidelines, some of which they intend to enforce. Some cities as well have issued protective ordinances for workers.

Many states’ executive orders (including the Virginia standard) require employers to heed the following:

  • ensure physical distancing of at least six feet between employees and their coworkers and customers;
  • provide face masks to all employees if maintaining six-foot social distance is not always possible;
  • require customer to wear face masks;
  • provide employees with other personal protective equipment in addition to face coverings;
  • improve ventilation;
  • provide employees with regular access to hand-washing and soap;
  • have hand sanitizer readily available to workers;
  • require deep cleaning after COVID cases are discovered in the workplace; and
  • notify workers when cases are found.

In some states, such as Oregon, Michigan, and Nevada, enforcement is handled by state occupational safety and health agencies; in others, by health departments, labor departments, and the attorney general’s office. Some states where federal OSHA has traditionally done enforcement are still figuring out how best to enforce these protections.

Inexcusably, the Trump administration has abandoned its responsibility to ensure that workers and the general public are safe in this pandemic. As the number of workers infected with and dying from this disease continues to grow, it’s clear that a voluntary approach to worker safety is not mitigating this public health disaster.

A voluntary approach to worker safety has failed to mitigate this public health disaster.

Even while workers continue to take major risks in speaking out and organizing in their workplaces, communities of color are paying the heaviest price for this federal policy failure. Although all workers on the job now or returning to work in the near future are at risk of illness, Black and Latinx workers and other workers of color, including immigrants, are more likely to be in frontline jobs. In addition, these communities have disproportionate rates of serious illness and death related to COVID-19, stemming from structural racism over generations related to healthcare and access to care. It is crucial that state and local policymakers step up to prioritize these workers and thereby further protect communities in this pandemic.

Below is a list of the 14 states that have adopted comprehensive worker safety protections (with links to more information). In addition to these, separate executive orders requiring face masks in the workplace have been issued by some governors (e.g., North CarolinaTexas, Massachusetts), cities (e.g., Raleigh, NC), and counties. Philadelphia has also issued the first citywide ordinance protecting workers from retaliation for raising COVID-19 safety and health concerns or refusing to work under unsafe conditions related to COVID-19.

California

Cal/OSHA adopted a new emergency standard for COVID prevention on November 19, 2020:
https://www.dir.ca.gov/OSHSB/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf

https://www.dir.ca.gov/title8/5199.html (the Cal/OSHA aerosol transmission standard that covers healthcare and first-response employees)

http://file.lacounty.gov/SDSInter/bos/supdocs/147290.pdf (L.A. County Board of Supervisors approved a proposal to facilitate worker-led health councils to monitor business compliance with public health orders mitigating the spread of COVID-19 at work)

https://thelafed.org/releases/in-battle-against-covid-19-board-of-supervisors-propose-innovative-solution/

Illinois

https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx (initial EO issued April 30)

https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-38.aspx (updated EO issued May 29)

http://dph.illinois.gov/covid19/community-guidance/guidance-food-and-meat-processing-facilities (issued by Illinois Department of Public Health)

From the reopening checklists now being published: “Any employee who has had close contact with co-worker or any other person who is diagnosed with COVID-19 should quarantine for 14 days after the last/most recent contact with the infectious individual and should seek a COVID-19 test at a state or local government testing center, healthcare center or other testing locations. All other employees should be on alert for symptoms of fever, cough, or shortness of breath and taking temperature if symptoms develop.”

Kentucky

https://govstatus.egov.com/ky-healthy-at-work

Massachusetts

https://www.mass.gov/info-details/reopening-mandatory-safety-standards-for-workplaces

https://www.mass.gov/forms/report-unsafe-working-conditions-during-covid-19 (complaint form)

https://www.mass.gov/service-details/covid-19-workplace-safety-measures-for-reopening

Michigan

Michigan OSHA issued Emergency Rules for COVID-19 on October 14, 2020. (See related press release.)

Two executive orders previously issued (here and here) will no longer be enforced by the state due to a Michigan Supreme Court decision on October 2nd invalidating the orders.

Minnesota

https://www.health.state.mn.us/diseases/coronavirus/businesses.html

https://www.dli.mn.gov/sites/default/files/pdf/COVID_19_business_plan_template.pdf

https://www.dli.mn.gov/sites/default/files/pdf/COVID_19_meatpacking_guidance.pdf (for meat)

https://www.leg.state.mn.us/archive/execorders/20-54.pdf (on the right to refuse work)

Nevada

http://business.nv.gov/News_Media/COVID-19_Announcements/

http://gov.nv.gov/News/Emergency_Orders/2020/2020-04-29_-_COVID-19_Declaration_of_Emergency_Directive_016_(Attachments)/

http://gov.nv.gov/News/Emergency_Orders/2020/2020-05-07_-_COVID-19_Declaration_of_Emergency_Directive_018_-_Phase_One_Reopening_(Attachments)/

New Jersey

On October 28, 2020, New Jersey’s governor issued Executive Order 192 to protect New Jersey’s workers during the pandemic. The governor’s press release provides an overview.

This comes on top of an earlier executive order issued on April 8, 2020 requiring essential retail businesses and industries to take steps to limit the spread of COVID-19, among other things. (The state is also updating industry-specific guidance.)

New York

https://agriculture.ny.gov/system/files/documents/2020/04/retailfoodstoreguidanceforseniors_1.pdf (some essential industries remain without guidance)

https://forward.ny.gov/

Oregon

On November 6, 2020, Oregon OSHA adopted a new COVID-19 emergency temporary rule addressing COVID-19 workplace risks.

This follows previous executive orders issued during the pandemic:
– https://www.oregon.gov/gov/admin/Pages/eo_20-12.aspx (executive order)
– https://osha.oregon.gov/news/2020/Pages/nr2020-19.aspx (Oregon OSHA)
– https://www.wweek.com/news/2020/07/01/oregon-osha-to-enforce-mask-rules/ (enforcing the EO)

Pennsylvania

https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf

https://www.jacksonlewis.com/sites/default/files/docs/PhiladelphiaCertifiedCopy20032801.pdf (Philadelphia ordinance that includes retaliation protections for raising concerns or refusing unsafe work; plus private right of action)

Rhode Island

https://reopeningri.com/wp-content/uploads/2020/05/COVID-19-Control_Plan_Fillable_Template-Final-5.13.20.pdf?189db0&189db0

Virginia

https://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-Prevention-of-the-Virus-That-Causes-COVID-19-16-VAC25-220-1.27.2021.pdf (Virginia issued a Final Permanent Standard for preventing COVID-19, effective January 27. 2021)

https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf (Virginia OSH passed the nation’s first Emergency Temporary Standard for workers, effective the week of July 27, 2020)

Washington State

https://www.governor.wa.gov/sites/default/files/COVID19AgriculturalSafetyPlan.pdf (COVID protections for farmworkers)

https://www.doh.wa.gov/Portals/1/Documents/4300/TWH-RevisedRule-9-10-2020.pdf (revised emergency rule on temporary worker housing)

https://www.governor.wa.gov/issues/issues/covid-19-resources/covid-19-reopening-guidance-businesses-and-workers (this is written as enforceable guidance)

https://www.lni.wa.gov/safety-health/safety-rules/enforcement-policies/DD170.pdf (enforcement)

This blog originally appeared at Nelp on May 10, 2021.

About the Author: Debbie Berkowitz, NELP’s Worker Safety and Health program director, joined NELP in 2015, following six years serving as chief of staff and then a senior policy adviser for the Occupational Safety and Health Administration (OSHA) (2009-2015)


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Labor watchdog backs calls for binding Covid-19 workplace safety standard, slams Trump’s policy

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The Labor Department’s independent watchdog recommended that the Occupational Safety and Health Administration consider issuing Covid-19-specific safety rules employers would be required to follow, saying that would better protect Americans from exposure to the coronavirus.

The recommendation adds weight to calls by President Joe Biden, other Democrats and labor unions for the agency to issue such emergency protections, which business groups and many Republicans oppose.

In a report released Tuesday, the department’s Inspector General said mandatory rules “could be of importance” because it’s extremely difficult for the agency to cite employers for safety risks without them.https://953a1f8cee7a9b5ef151aee5a2980011.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

If OSHA issued a Covid-19-specific emergency temporary standard, “employers would be legally obligated to comply with it,” the IG said, and OSHA inspectors “may not be hampered by a lengthy process” when it comes to proving a violation.

OSHA has already issued Covid-19 guidance under a January executive order from Biden and published numerous documents detailing ways that employers can protect their workers from exposure. But the guidelines are not enforceable and do not require companies to comply.

OSHA inspectors in area offices across the country told the IG that a coronavirus-specific safety standard would be helpful to identify safety hazards during Covid-19-related inspections and make it easier to issue citations.

“Guidance in and of itself cannot operate in lieu of an [emergency temporary standard] as an enforcement tool,” the IG report said.

The Trump administration took the position that a Covid-19-specific safety standard wasn’t necessary because the agency could use other safety rules, like its requirements to provide workers personal protective equipment, to police businesses during the pandemic.

Biden took a different approach with his executive order, which directed the agency to decide by mid-March whether it was necessary for OSHA to issue an emergency standard.

The agency, currently being led by Principal Deputy Assistant Secretary Jim Frederick, released stricter guidelines in January for employers on how to protect their workers from the coronavirus.

But so far, there hasn’t been any sign of whether OSHA will issue a safety rule or simply release more non-mandatory safety recommendations for workplaces, although Frederick has said that the January guidance was “not going to be the last step in the process” of responding to Biden’s order.

The IG’s findings could help the Biden administration justify the emergency rulemaking, which Republicans and the business community have opposed, warning it could increase liability and costs for already-struggling businesses.

However, the IG’s audit Tuesday found that the Trump administration’s business-friendly approach at OSHA did not provide the level of protection workers needed during the coronavirus pandemic and left workers’ safety at increased risk.

The report noted that while OSHA has received an influx of safety complaints during the pandemic, the agency suspended most of its on-site safety inspections last year, instead opting for informal inspections that typically result in a phone call to the facility, putting employees’ safety at greater risk.

“While remote inspections might help mitigate potential transmission of Covid-19, a reduction of on-site inspections could result in more work-site accidents, injuries, deaths or employee illnesses,” the IG report said.

This blog originally appeared at Politico on March 2, 2021. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.


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Clyburn pressures OSHA over its failures on meatpacking plant COVID-19 outbreaks

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Meatpacking plants have been the sites of some of the worst outbreaks—and the worst abuses—of the COVID-19 pandemic. Now, Rep. Jim Clyburn, chair of the House Select Subcommittee on the Coronavirus Crisis, is planning to investigate. Clyburn put the meatpacking industry and the Occupational Safety and Health Administration (OSHA) on notice Monday.

Clyburn charged that OSHA failed “to adequately carry out its responsibility for enforcing worker safety laws.” With 482 outbreaks in the meat industry, more than 45,000 workers having gotten sick, and 482 deaths, OSHA has nonetheless issued just eight citations and $80,000 in fines for COVID-19 issues in the industry.

That’s despite workers alleging that managers at one plant had a betting pool on how many employees would get sick while they pressured workers to stay on the job no matter what. Despite the industry coming under such scrutiny in public that Tyson Foods took out a full-page ad defending itself. But the public scrutiny didn’t mean government scrutiny—the Trump administration and state and local governments repeatedly gave meatpacking companies a pass.

At meatpacking giant JBS, 3,084 workers have had COVID-19, and 18 have died, Clyburn noted, and an OSHA investigation found serious safety lapses. Meanwhile, the company’s profits have skyrocketed, growing 778% in the third quarter of 2020. At Smithfield, 3,553 workers contracted COVID-19 and eight died. In just one outbreak, 1,300 people were infected, 43 were hospitalized, and four died. Clyburn is requesting “all documents” relating to worker complaints or concerns, as well as documents relating to federal or state safety investigations.

“The meat and poultry industry became a vector for the spread of COVID 19 because it did not implement basic safety precautions. Stunningly, when workers filed complaints about unsafe conditions in the pandemic, OSHA failed to conduct inspections,” Debbie Berkowitz, a former OSHA chief of staff who is now director of the National Employment Law Project’s worker health and safety program, said. “This investigation is critical to find out why, among all the big industries, the meat industry was able to get a pass at protecting workers in this pandemic.”

Clyburn’s warning shot to OSHA—obviously with a very different leadership than presided over the meatpacking industry’s coronavirus response to this point—comes as the agency considers whether to put emergency standards in place to require employers to take COVID-19 precautions. That decision will be made on March 15.

This blog originally appeared at Daily Kos on February 2, 2020. Reprinted with permission.

About the Author: Laura Clawson has been a contributing editor since December 2006. Clawson has been full-time staff since 2011, and is currently assistant managing editor at the Daily Kos.


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Businesses brace for mandatory workplace safety rules under Biden

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President-elect Joe Biden has vowed to issue mandatory workplace safety rules that employers must follow to protect workers from coronavirus exposure. It’s likely to be one of his first big fights with American business and a test of how far he can go to create a national strategy to slow a pandemic that is still raging out of control.

Employers, which until now have been treated to a flurry of optional guidelines by the Trump administration that have been revised and rewritten throughout the coronavirus crisis, are bracing for the new Biden rules.

Biden and his allies believe that a national set of rules for employers could help workers return more quickly to offices and other workplaces since everyone would be following the same emergency standard, rather than a patchwork of state-by-state, county-by-county regulations.

“We cannot successfully restart our economy until workers are safe — and the first step is to require that businesses implement very basic measures to prevent the virus from spreading in the workplace,” said Debbie Berkowitz, a senior policy adviser for the Occupational Safety and Health Administration under President Barack Obama who’s now with the National Employment Law Project. “To stem the growing number of cases, hospitalizations and death from COVID 19, it is critical that OSHA, or the Biden administration, promulgate an emergency temporary standard immediately to mitigate the spread of this disease at work and then back out into the community.”

But Republicans and the business community are likely to come out strong against any such broad mandates.

“If done the wrong way, if it’s implemented as a strict regulatory requirement with little flexibility, I think it will be difficult for many businesses to implement,” Neil Bradley, the U.S. Chamber of Commerce’s chief policy officer, said during a press call this week. Ultimately, he said, it “will hold back both fighting the coronavirus and restoring the economy.”

The issue threatens to set up a contentious battle in the lame duck session of Congress, when lawmakers debate a new coronavirus relief package.

Senate Majority Leader Mitch McConnell and other Republicans are demanding a robust liability shield for businesses and schools as a condition for a new aid package — a provision that former OSHA officials say would strip Biden of the ability to enforce Covid-19 workplace protections.

As part of his plan to combat the coronavirus, Biden says he will direct his administration to issue the so-called emergency temporary standard, which would lay out specific precautions that employers must take to protect their workers from exposure to the virus.

The standard isn’t likely to fully take shape until the new administration assumes control of the government, but a former OSHA official predicted it would at least mandate the Centers for Disease Control’s guidelines, which broadly suggest allowing for social distancing, frequently disinfecting the workplace and providing protective equipment like gloves, goggles or face masks.

Implementing such a rule is something the new president could do quickly, even without Senate-confirmed leadership at the Labor Department or OSHA, according to two former senior OSHA officials.

Unions and labor advocates have slammed OSHA over its response to the pandemic. While the worker safety watchdog has cited companies for coronavirus-related risks over the past several months, large corporations have received meager fines in cases where their workers fell ill or have even died from the coronavirus. OSHA has also used its special enforcement powers far more leniently than previous administrations.

Unions say that much of the problem lies with the flexibility the watchdog has given to employers and the influence businesses have had over its enforcement efforts.

But flexibility is what businesses want to maintain.

The Chamber’s Bradley said that while he’s confident the Biden administration will listen to businesses’ position, any emergency standard would need to “be flexible enough to recognize” employers’ ability to implement public health safety measures and to “accommodate the differences in how businesses operate.”

“There is a big concern,” said Robyn Boerstling, who oversees human resources policy issues at the National Association of Manufacturers. “Every manufacturing facility is generally different. They make different things, they have different procedures, they have different assembly lines, production processes. So, manufacturers need flexibility in different ways to implement their controls.”

Boerstling says Biden’s plan will leave businesses with little room to weigh in on how the rules affect their specific industry once the emergency standard is in place.

When OSHA determines workers are in “grave danger,” the agency is able to issue emergency temporary standards that take effect immediately. The emergency standard stays in place until a permanent final rule is issued, but the agency will accept public comments on the standard during that period.

“An ETS is very immediate,” Boerstling said. “It’s permanent until it’s not permanent.”

The American Hospital Association, which represents more than 5,000 hospitals and health care providers that would be heavily regulated under any such infectious disease rule, suggested that an emergency infectious disease standard could hinder the health response to the virus.

The organization issued a fact sheet warning its members that an emergency standard would create “a new layer of conflicting and unnecessary regulatory burden at precisely the wrong time,” putting a strain on supplies of protective equipment and limiting hospital capacity.

“Unions have reported filing numerous OSHA complaints against hospitals; such actions could force hospitals to dramatically reduce their inpatient capacity rather than potentially expose themselves to very large fines,” the fact sheet said.

The maximum fine OSHA can issue against an employer is $134,937 per violation, when an employer’s breach of safety rules is considered “willful” or is a repeated violation. For other violations, including “serious” and “other than serious” offenses, the safety agency’s fines max out at $13,494 per infraction.

Such concerns were what prompted McConnell to push for Covid-19 liability protections — including shielding employers from being fined under federal safety laws — warning that “one-size-fits-all” rules would prompt “an epidemic of lawsuits” against employers who can’t comply.

But with both of Georgia’s U.S. Senate seats facing runoff elections that will determine which party controls the upper chamber, the GOP’s negotiating posture over another aid bill is weaker than when McConnell first made those calls.

While there’s little chance Democrats would be willing to limit their incoming president’s ability to police workplace safety in exchange for an aid bill in the lame duck, McConnell seems in no mood to drop his demand for liability protections.

“It should be highly targeted, very similar to what I put on the floor in October and September,” he said of the next aid bill during a press conference on Capitol Hill Tuesday.

This blog originally appeared at Politico on November 13, 2020. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.


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OSHA is doing virtually nothing to protect workers in the pandemic

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Two reports out this week show how badly the Trump administration is failing workers during the coronavirus pandemic. The AFL-CIO’s annual Death on the Job report looks at 9,051 complaints workers have sent the Occupational Safety and Health Administration expressing concern about safety on the job during the pandemic. OSHA has investigated just 198 of them, and 85 of 1,215 referrals. More than 2,000 of the complaints were from healthcare workers. More than 1,000 were from retail workers.

The National Employment Law Project, meanwhile, looked at workers’ retaliation complaints related to COVID-19 whistleblowing. Of 1,744 complaints, NELP “found that only 348 complaints—just one in five—were docketed for investigation; and only 35 complaints—just two percent—were resolved in that period. Most of the complaints—54 percent—were dismissed or closed without investigation.”

OSHA is failing workers—just as Trump wants.

This blog originally appeared at Daily Kos on October 10, 2020. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributing editor since December 2006. Full-time staff since 2011, currently assistant managing editor.


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Report: OSHA Investigated, Resolved Only 2% of COVID Retaliation Complaints

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Washington, DCBrand-new analysis by Deborah Berkowitz and Shayla Thompson of the National Employment Law Project (NELP) shows that the Occupational Safety and Health Administration (OSHA) has failed to protect COVID safety whistleblowers who filed retaliation complaints.

NELP analyzed OSHA’s public data showing 1,744 COVID-19-related retaliation complaints filed by workers from April through August 9, and found:

  • One in five complaints (348) were docketed for investigation.
  • Only 2% of complaints (35) were resolved during that period.
  • Most complaints, 54%, were dismissed or closed without investigation.

“Resolving a mere two percent of OSHA retaliation complaints in six months is a dismal record under any circumstances. It undermines workers’ confidence that they’ll be protected when reporting unsafe working conditions. But it is especially egregious during a pandemic that, to date, has resulted in more than 210,000 COVID-related deaths and over 7.4 million cases in the United States—many likely due to workplace-related coronavirus transmissions—the most of any country in the world,” according to the study.

Reporting on the new NELP analysis, The Washington Post’s Eli Rosenberg writes, “Advocates and former OSHA officials say OSHA’s lack of response to retaliation complaints is just the latest example of OSHA favoring companies over workers the agency is tasked to safeguard. Plus, the stakes are much higher in the middle a pandemic that has made so many workplaces more dangerous.”

To speak with the authors of the NELP analysis, please reach out to amy.lebowitz@berlinrosen.com.

This blog originally appeared at the National Employment Law Project on October 8, 2020. Reprinted with permission.

About the Author:  Deborah Berkowitz, NELP’s Worker Safety and Health program director, joined NELP in 2015, following six years serving as chief of staff and then a senior policy adviser for the Occupational Safety and Health Administration (OSHA) (2009-2015).


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This Amazon Grocery Runner Has Risked Her Job to Fight for Better Safety Measures

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This arti­cle is part of a series on Ama­zon work­ers pro­duced in part­ner­ship with the Eco­nom­ic Hard­ship Report­ing Project.

Courte­nay Brown spends her day mak­ing gro­cery runs for oth­ers in a foot­ball-field-sized maze of nar­row aisles and refrig­er­at­ed enclaves. At the Ama­zon Fresh unit in a Newark, New Jer­sey ful­fill­ment cen­ter, she works on the out­bound ship dock, help­ing direct the load­ing of trucks and send them off on local deliv­ery routes. Brown says that after near­ly three years at the e-tail empire, her job has been “hell.”

“Imag­ine a real­ly intense work­out, like you just got off of the tread­mill, no cool down, no noth­ing,” she describes one espe­cial­ly gru­el­ing day with a resigned laugh. “That’s how my legs felt.”

Ama­zon Fresh employ­ees often have to comb through huge stocks of var­i­ous chilled and frozen items, which means they need to wear full win­ter clothes to work. The stress and phys­i­cal exhaus­tion of the job tends to wear out many new hires with­in their first few days. “You don’t have that many that have last­ed here,” she says. “It’s so hard.”

With the pan­dem­ic keep­ing con­sumers indoors, Ama­zon gro­cery sales have rough­ly tripled in the sec­ond quar­ter over last year. The num­ber of deliv­ery trucks mov­ing in and out of the Newark ful­fill­ment cen­ter has jumped accordingly.

“Every day I come in, it’s just more and more and more and more,” Brown says. “Lit­er­al­ly every day we break the pre­vi­ous day’s record for the total num­ber of routes that went out for the entire day.”

“Once we get home [from work], the only thing we can do is show­er and dis­in­fect,” she con­tin­ues. “A lot of us [are] too exhaust­ed to eat. We pass out. Then we repeat the process the fol­low­ing day.” Some cowork­ers have end­ed up over­sleep­ing, she adds, and “end up miss­ing the whole day.”

For its part, an Ama­zon spokesper­son wrote in an email that while some jobs at Ama­zon Fresh are phys­i­cal­ly tax­ing, work­ers can choose less stren­u­ous labor.

“Imag­ine your stan­dard nor­mal super­mar­ket aisle, [then] cut that in half,” she observes. “You’re expect­ed to go through that aisle with oth­er peo­ple stock­ing the shelves, or clean­ing… it’s real­ly, real­ly, real­ly cramped.”

Ama­zon boasts mak­ing 150 oper­a­tional changes dur­ing the pan­dem­ic that include dis­trib­ut­ing mil­lions of masks at work­sites, adding thou­sands of jan­i­to­r­i­al staff, and rede­ploy­ing some per­son­nel to help enforce social dis­tanc­ing rules. While it has imple­ment­ed social-dis­tanc­ing rules, and even pro­vides an elec­tron­ic mon­i­tor­ing sys­tem to help keep work­ers sev­er­al feet apart on the ware­house floor, Brown says work spaces are still too crowd­ed: “It’s pret­ty much a show…Where I work on the ship dock, we’re all mashed up together.”

The tense atmos­phere has “def­i­nite­ly changed the rela­tion­ship” among work­ers, she con­tends. Her fel­low employ­ees were friend­lier before, but now “a lot of peo­ple snap at each oth­er a bit more.”

The threat of COVID-19 has only added to the psy­cho­log­i­cal bur­den. “When the pan­dem­ic first start­ed, I remem­ber a lot of us were watch­ing the news,” Brown reflects. “I was talk­ing to man­agers and try­ing to get them [to lis­ten]. ‘Hey, you know, this is going on and we might want to start prepar­ing.’ And they [were] just [act­ing] like it [was] not that big of a deal. Peo­ple are dying, and it’s not that big of a deal?”

Although Ama­zon even­tu­al­ly enact­ed safe­ty mea­sures, Brown says she and her col­leagues spent “months com­plain­ing” about what they saw as sub­stan­dard pro­tec­tions, includ­ing inad­e­quate safe­ty gear and social-dis­tanc­ing mea­sures. An Ama­zon spokesper­son main­tains the com­pa­ny moved to pro­tect its work­ers at the out­set of the pan­dem­ic, and that masks were dis­trib­uted in ear­ly April.

But Brown bris­tles at the com­pa­ny’s claims, say­ing the response was slow and devoid of trans­paren­cy. Work­ers were espe­cial­ly upset, she recalls, when they received news of a COVID-19 infec­tion at their site two weeks after the indi­vid­ual had report­ed­ly tak­en ill.

Even­tu­al­ly, Brown con­nect­ed with oth­er Ama­zon orga­niz­ers through an online peti­tion cir­cu­lat­ed by the advo­ca­cy net­work Unit­ed for Respect. Ear­li­er this year, she began work­ing with the Athena coali­tion to pres­sure Ama­zon to rein­state some work­er pro­tec­tions that were insti­tut­ed ear­li­er on in the pan­dem­ic and then dis­con­tin­ued. The work­ers are demand­ing the restora­tion of “haz­ard pay” for ful­fill­ment-cen­ter work­ers, as well as unlim­it­ed unpaid leave for those who opt to stay home to pro­tect their health. (Over the objec­tions of its work­force, Ama­zon end­ed unlim­it­ed unpaid leave and scrapped its $2 hourly “incen­tive” bonus in May.) The coali­tion is also push­ing for more trans­paren­cy in the report­ing of new cas­es, so man­age­ment will “actu­al­ly tell us the truth about the num­bers of peo­ple that are sick.”

In April, Brown par­tic­i­pat­ed in a media con­fer­ence call with Sen. Cory Book­er, D-N.J., to pro­mote an Essen­tial Work­ers Bill of Rights that would beef up health and safe­ty pro­tec­tions, pro­vide child­care sup­port and uni­ver­sal paid leave poli­cies, and pro­tect whistle­blow­ers. More recent­ly, she was fea­tured in a New York Times video about the work­ing con­di­tions at Ama­zon. She claims her pub­lic cam­paign­ing has drawn the ire of management.

“I’m harassed every day, all day,” she says. One safe­ty super­vi­sor in par­tic­u­lar is “just watch­ing” to see if she vio­lates the company’s social-dis­tanc­ing rules.

Brown recalls a recent inci­dent in which she was speak­ing casu­al­ly with some co-work­ers about safe­ty issues when the super­vi­sor inter­vened, shout­ing at them to keep six feet apart. Although they were all main­tain­ing their dis­tance, she says, “he [yelled], ‘you’re in a group!’” They answered, “Yeah, but we’re all six feet apart from each oth­er with our masks on.” But she says the man­ag­er nonethe­less threat­ened to write them up and warned they could be terminated.

Ama­zon has stat­ed that it oppos­es retal­i­a­tion against employ­ees who voice their con­cerns about work­ing con­di­tions. But like oth­er Ama­zon orga­niz­ers, Brown believes her treat­ment reflects a broad­er cam­paign aimed at dis­suad­ing employ­ees from organizing.

“What they’ll do is they’ll find an indi­vid­ual, and they’ll kind of make an exam­ple of you. And that scares every­body else,” she says. Her obser­va­tions are affirmed by a recent Open Mar­kets Insti­tute report that finds that Ama­zon has used sophis­ti­cat­ed work­place sur­veil­lance tac­tics to intim­i­date and sup­press work­ers who seek to union­ize or chal­lenge the company’s labor practices.

Brown, mean­while, is ded­i­cat­ed to improv­ing her work­place. This is not the first time she has faced hos­tile cir­cum­stances, both inside the Ama­zon ware­house and out. For a stretch in 2018, she had to live in a motel with her sis­ter, who also works at Ama­zon, because the two could not secure a rental apart­ment with the wages they were earn­ing deliv­er­ing food for the cor­po­rate behe­moth. “We were lit­er­al­ly starv­ing,” she says. “We weren’t mak­ing enough to be able to pay for the room, eat, and make it to and from work.”

Ama­zon has denied charges of employ­ee sur­veil­lance, dis­miss­ing the Open Mar­kets Insti­tute as “a peren­ni­al crit­ic that will­ful­ly ignores” the com­pa­ny’s record of cre­at­ing jobs with “indus­try lead­ing wages and ben­e­fits.” The com­pa­ny claims that it does eval­u­ate work­ers’ per­for­mance “over a long peri­od of time,” and pro­vides under-per­form­ing work­ers with “ded­i­cat­ed coach­ing to help them improve.”

Giv­en the dan­gers of speak­ing out, Brown some­times won­ders if she might end up home­less again. But she’s less fear­ful about los­ing her job than she is about the health haz­ards she faces every day as she fights to hold her employ­er account­able. “It’s real­ly ter­ri­fy­ing,” she says, “but if I don’t do this, then I could poten­tial­ly get sick and die.”

This blog originally appeared at In These Times on October 7, 2020. Reprinted with permission

About the Author: Michelle Chen is a con­tribut­ing writer at In These Times and The Nation, a con­tribut­ing edi­tor at Dis­sent and a co-pro­duc­er of the “Bela­bored” pod­cast. She stud­ies his­to­ry at the CUNY Grad­u­ate Cen­ter. She tweets at @meeshellchen.

About the Author: Molly Crabapple is an artist and writer in New York, and is the author of, most recent­ly, Draw­ing Blood and Broth­ers of the Gun, (with Mar­wan Hisham). Her art is in the per­ma­nent col­lec­tions of the Muse­um of Mod­ern Art. Her ani­mat­ed short, A Mes­sage from the Future with Alexan­dria Oca­sio-Cortez, has been nom­i­nat­ed for a 2020 Emmy for Out­stand­ing News Analy­sis: Edi­to­r­i­al and Opinion.


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