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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 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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Service + Solidarity Spotlight: IAM Supports Workplace Violence Prevention for Health Care and Social Service Workers Act

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Working people across the United States have stepped up to help out our friends, neighbors and communities during these trying times. In our regular Service + Solidarity Spotlight series, we’ll showcase one of these stories every day. Here’s today’s story.

In a letter to House leadership, Machinists (IAM) International President Robert Martinez Jr. urged representatives to support the Workplace Violence Prevention for Health Care and Social Service Workers Act (H.R. 1195). This bipartisan legislation would create and maintain needed protections against workplace violence for health care and social service workers. A 2016 U.S. Government Accountability Office study concluded that rates of violence against health care workers are up to 12 times higher than rates of violence for the overall workforce.

“Health care and social service workers who are called on to help us and our families in times of need deserve a safe and secure work environment,” Martinez wrote. “This legislation would instruct the Occupational Safety and Health Administration (OSHA) to issue a workplace violence prevention standard requiring employers in the health care and social service sectors to develop and implement a plan to protect their employees from workplace violence.”


This blog originally appeared at AFL-CIOon March 29, 2021. Reprinted with permission.

About the Author: Kenneth Quinnell  is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.


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On the Introduction of the Safe Line Speeds in COVID-19 Act to Protect Meatpacking Workers

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Washington, DC—Following is a statement from Rebecca Dixon, executive director of the National Employment Law Project:

“NELP applauds the introduction of the Safe Line Speeds in COVID-19 Act, championed by Senator Cory Booker and Representative Rosa DeLauro, which would protect the health and safety of meatpacking workers by suspending and prohibiting any line speed increases in meat and poultry plants during the ongoing COVID pandemic. The Act would halt any line speed waivers granted by the U.S. Department of Agriculture under the Trump administration.

“COVID-19 spread like wildfire across the meat and poultry industry in the last year, and it continues to spread through the plants. Despite guidance issued in March 2020 by the Centers for Disease Control and Prevention that emphasized the key protective measure of social distancing, the companies operating the plants continued to require meat and poultry workers to work shoulder to shoulder and elbow to elbow through the entire pandemic. Stunningly, in the middle of the pandemic, as tens of thousands of meatpacking workers were getting sick and many were dying, the USDA gave permission for many poultry, beef, and swine slaughter plants to increase their production line speeds—thereby forcing workers to stand closer together rather than father apart.

“Workers, their families, and their communities—and especially Black and brown workers and other communities of color—paid a huge price when the meat industry failed to mitigate the spread of COVID-19. A study published by the National Academy of Sciences estimated that this failure was associated with between 236,000 to 310,000 COVID-19 cases—and 4,300 to 5,200 deaths—just in the first few months of the pandemic (as of July 1, 2020).

“We cannot lose sight of the fact that, in addition to this being a workers’ right issue, this is also a racial justice issue. The meat and poultry industry is built on the labor of workers of color. The CDC estimates that 87% of all infections in the meat industry occurred among people of color in the industry.

“The Act will affect policies implemented by the USDA during the previous administration as follows: temporarily suspend line speed waivers in meat and poultry plants; block funding to implement line speed increases in hog slaughter plants; and require the issuance of an accountability report to document whether the industry implemented worker safety protections and to evaluate how the relevant agencies in the previous administration responded to the outbreaks of COVID-19 in the industry.

“This legislation is a landmark in the advocacy of meat and poultry workers, organizers, and communities that have been demanding safer workplaces and accountability for employers and government agencies that failed to put basic safety measures in place during the COVID-19 crisis. The voices and direct actions of these communities laid the groundwork for federal action.

“The COVID-19 crisis has laid bare the racial inequities in housing, healthcare, and the workplace. Big Meat’s commitment to profits for a few instead of preventative and protective safety protocols to protect hundreds of thousands of meatpacking workers during the greatest public health crisis of our time exemplifies why it’s critical to hold both the industry and government accountable for practices and policies that endangered workers and their communities. Accountability must be a part of a just and inclusive recovery.

“The Safe Line Speeds in COVID-19 Act is a critical first step toward ensuring worker safety during the COVID-19 pandemic. We look forward to working with Congress and the Biden-Harris administration to secure safety protections for the nation’s meat and poultry workers by revoking all existing line speeds waivers and relinquishing any further rulemaking that increases line speeds in the meat and poultry industry; and by promulgating and enforcing a COVID-19 emergency temporary standard through the Occupational Safety and Health Administration.”

This blog originally appeared at NELP on March 11, 2021. Reprinted with permission.

About the Author: National Employment Law Project is a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting underpaid and unemployed workers. 


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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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States become worker safety watchdogs as pandemic worsens

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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.

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.In the unfolding pandemic, economic crisis and reckoning on race, governors and mayors are shaping our shared future. Who are the power players, and how are they driving politics and influencing Washington?Full coverage »

“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.

About the Author: Katherine Landergan covers the state budget, tax policy and labor issues for POLITICO New Jersey.

About the Author: Katy Murphy covers consumer regulations with a focus on data privacy for POLITICO California. 

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 Complaints Show the Morbid Dangers Healthcare Workers Face During Covid

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During the darkest days of the Covid-19 pandemic, with thousands dying every day, America relied on a select few essential workers to keep society running, like postal workers, grocery workers and meat packers—all industries that have seen, together, hundreds of Covid-related deaths among workers. Chief among them are nurses, on the front lines of the pandemic, who have put their lives on the line to intubate disease victims and provide lifesaving medical care. Since the pandemic began, over 500 healthcare workers in the United States have died from the virus.

But these workers who we rely on so deeply—dubbed “warriors” by President Donald Trump and “heroes” by Senate Majority Leader Mitch McConnell—continue to work under hostile management and in dangerous workplaces that make the disease even more contagious and deadly.

That’s according to a dataset and interactive map recently released by Strikewave, a newsletter of original reporting and analysis for the U.S. labor movement. The data show at least 21,510 Covid-related Occupational Safety and Health Administration (OSHA) complaints since the start of the pandemic. It’s unknown exactly how many more complaints than usual have been filed, as OSHA complaints are relatively confidential. But it’s clear that they are surging.

Common in the complaints are allegations of managerial neglect, carelessness and abuse.

And while we may like to think that bad management is the exclusive territory of greedy corporations, the complaints show how healthcare workers, some of them working for nominally non-profit hospitals, have been failed by their employers even as they perform dangerous and essential work.

At Ascension Genesys Hospital in Grand Blanc, Michigan, a suburb of Flint, several OSHA complaints filed at the end of March alleged widespread shortages of personal protective equipment (PPE) and threats from management.

Carolyn Clemons, a registered nurse working in Genesys Hospital’s Covid-19 intensive care unit and member of Teamsters Local 332, said that in late March, when cases were skyrocketing, nurses who wore masks outside of patient rooms were threatened with disciplinary actions and firings. In hallways and offices, where nurses worked closely together, managers enforced a no-mask policy into April, according to Clemons. Ironically, some of the managers who threatened mask-wearing employees were the same who later tested positive for the coronavirus.

“There was not good communication,” Clemons said. “We felt a lack of respect for what we do.”

At the height of the pandemic, management kept stockpiles of PPE under lock and key in their offices while telling nurses to wear garbage bags instead, according to Kimberly Cox, a registered nurse and the Chief Steward of Teamsters 332. Even now, she says, much of that equipment remains unused.

Nurses at the hospital have tested positive. According to Cox, however, Genesys has so far refused to either provide on-site tests for nurses or inform employees of the number of positive or assumed cases among staff, despite repeated union requests. Nurses, some of them exhausted by persistent coughs and high fevers, were told to drive to the next hospital over.

There are complaints from hospitals across the Ascension health system.

One, filed on April 28 at Ascension St. Francis Hospital in Milwaukee, claimed management failed to implement social distancing practices “properly or effectively” and that workers were not informed when they were exposed to patients and coworkers with confirmed cases of Covid-19. At that point there were almost 3,000 Covid-19 cases in Milwaukee and more than 150 deaths.

There have been more than 15 such complaints against the health system, including the ones against Genesys and St. Francis, and there are likely more (detailed information about OSHA complaints is only available for “closed” cases, suggesting there could be several ongoing but confidential complaints). Additionally, Teamsters Local 332 has filed more than 100 grievances with the hospital.

Ascension, which operates as a non-profit out of St. Louis, Missouri, cut its CEO a $13.6 million paycheck in 2017, the last year on record. It also operates a venture capital fund, Ascension Ventures, which manages more than $800 million, and an investment advisory fund, Ascension Investment Management, which is responsible for $38.7 billion in corporate money.

The health system, which has been fined nearly $70 million for various regulatory violations over the past decade, received more than $400 million in federal funding in May. Genesys itself received more than $20 million. The funding, like all federal stimulus so far, comes with no stipulations regarding employee treatment.

Ascension Health did not respond to a request for comment.

These kinds of complaints can be seen across the industry. At publicly-traded HCA Healthcare, one of the wealthiest hospital chains in the country, complaints are, in some cases, nearly identical to those lodged against Ascension: N95 masks locked away by management, a total lack of protective equipment for housekeepers and food service workers, and prohibitions on mask-wearing. One complaint even alleged that nurses were directed to clean their masks with household cleaning wipes, return them to a bag, and then reuse those masks. In total, workers in the HCA network lodged at least 35 complaints, almost twice as many as Ascension received.

HCA paid its CEO more than $26 million in 2019 and has made more than $7 billion over the past two years. The chain received $1 billion in federal pandemic aid, also without stipulation. Weeks later, nurses at HCA claimed the company threatened them with mass firings unless they agreed to wage freezes.

These OSHA complaints are just a few of the thousands filed, all of which show how so-called essential workers have been treated as disposable. There are more than 3 million Covid-19 cases in the United States, but many essential workers are already losing meager hazard pay raises. As of April, at least 135,000 health care practitioners who work in hospitals had lost their jobs, including many nurses.

It’s a racial justice issue as well. In New York City, 75% percent of frontline workers are people of color. And Adia Harvey Wingfield, a sociologist studying Black healthcare workers, found that those workers are more likely to work at hospitals in the same impoverished Black communities that have been devastated by the coronavirus.

Both the pandemic and the protests sweeping the nation in the wake of the police killing of George Floyd carry the same lesson: our brutal status quo has long been untenable for many Americans, particularly the poor and non-white.

This blog originally appeared at In These Times on July 16, 2020. Reprinted with permission.

About the Author: Nick Vachon is an In These Times editorial intern.


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7 Best Practices to Accelerate Employee Safety in the Workplace

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Research has shown there’s a direct link between worker productivity and workplace health and safety. These findings should be enough to motivate employers to accelerate the safety of all staff members in the workplace, and for many businesses, they have been. 

“Safety culture” is a phrase often repeated, and it refers to the concept of making high standards of occupational health and safety a core company value. By fostering such a culture, employees are not only physically protected; they feel like valued team members and are empowered to take initiative. As the workers are strengthened, so too is the organization – and vice versa.

The seven best practices listed below need to be an intrinsic part of a business owner’s vision. If your employer doesn’t actively strive to achieve them, the Occupational Safety and Administration (OSHA) recommends you bring the issue to their attention. If no resolution is reached, you can file a confidential complaint with the Administration. 

Take a closer look at the treatment you should be getting, and the conditions you’re within your rights to expect.

Inclusion in a Safety Task Force

As employees, you must be involved in health and safety initiatives at all stages. This creates a strong foundation, and creating a dedicated task force is a crucial element of this. 

You’ll need time to meet, plan, and execute activities during the workday rather than after hours – none of your own time or wages may be sacrificed. If you take on additional responsibilities as a result of being included in such a task force, you must be properly remunerated.

Engagement in Discussions 

As each business is different, the requirements for an effective health and safety program also vary. The OSHA provides several helpful resources on how to assess and maintain safety standards in diverse work environments. 

In discussions on how to maintain health and safety, staff should be treated as equals to executives, with as much to contribute to the conversation. After all, you have front-line experience of work circumstances and conditions. The number of employees, their various tasks, and the equipment used must all be considered. As part of best practice, these circumstances will be regularly reviewed.

Involvement in Developing Protocols

The discussions the worker-centric task force is involved in should result in the development of several protocols. Safety, inspection, training, and recording procedures, among others, would be developed by this team, and be reexamined on a scheduled basis. 

Any new practices or apparatus must be factored in, and protocols appropriately expanded or amended. The protocols will stipulate how frequently you receive training, and what specific issues are covered.

Regular Training Sessions

New employees must receive comprehensive training as part of their induction, along with further instruction when any new policies or procedures are introduced. Thereafter, sessions can be scheduled at regular intervals and assessments conducted to verify that your knowledge and skills are up to date.

Frequent Inspections of Working Conditions

The condition of all equipment and work environments, including offices, factory floors and outside areas, must be checked according to a list of requirements. In addition, you should be assessed according to KPAs (key performance areas) as developed in taskforce discussions. You know how to do your job well and giving this input in the discussions means you’ll know what to expect in the inspections too.

Proper Maintenance of Records

Meticulous records are essential in the case of injuries (or illness, as the current COVID-19 pandemic illustrates) that result in workman’s compensation claims. If you have a rightful claim, the proper documentation will make it easier for you to access your payout. In addition, your employer will require valid, in-date compensation insurance so that you are properly covered.

Records are also helpful in identifying positive or negative trends regarding health and safety standards and culture, so they can help prevent future incidents. Best practice recommendations are to keep detailed records that are easy to access and understand, and to review them at regular intervals.

Investigation of All Incidents

If something goes wrong in the workplace a thorough investigation needs to be conducted. By reviewing what happened, companies can take steps to avoid recurrences. This will accelerate your safety, and any employees who were on the scene or have knowledge of the situation must be consulted. 

You should also see clear evidence that changes have been made, to guard against the incident happening again. Executives are required to act – and if they don’t, you can remind them to.

About the Author: With a passion for writing, Megan is a freelance writer focusing on business, workplace compliance, and GRC topics. When she’s not typing away at her keyboard, Meg loves playing Broadway scores on the piano and enjoys roasting her own coffee.


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