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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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How to Keep America’s Public Workers Safe as We Emerge From the COVID-19 Lockdown

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When the COVID-19 pandemic struck, Steve Scarpa began fishing antibacterial wipes, socks and even T-shirts out of the sewers in Groton, Connecticut.

Scarpa, president of United Steelworkers (USW) Local 9411 and a member of the city’s wastewater treatment crew, said residents went into “mad hysteria cleaning mode” and simply flushed potentially contaminated objects down the toilet.

And so Scarpa and his co-workers risked COVID-19 themselves to remove items that kept jamming the sewer pumps crucial to the wastewater system’s operation.

While millions of Americans did their jobs remotely during the pandemic, public servants turned out in force every day to repair roads, collect trash, operate water systems and keep communities functioning.

They had America’s back. Now, the nation must have theirs as well.

Public workers will face additional exposure to COVID-19 as the lockdown ends and Americans return to government buildings, streets, parks and beaches in growing numbers.

Cities and counties have an obligation to provide personal protective equipment (PPE), enforce social distancing in public offices and implement other measures to protect road crews, water department personnel and code enforcement officers.

But it isn’t only the government’s responsibility to help public workers navigate the health risks that constitute the new normal.

Everyone has a role to play.

Residents can do their part by wearing masks when water department workers show up at the door to repair broken meters and by staying out of government buildings when they’re sick.

They can safeguard the health of crews repairing sidewalks, mowing parks and cleaning storm drains just by staying at least six feet away from work areas.

The public needs to pause and think about the people who perform these essential services—and about the impact careless actions have on them. It’s simply unacceptable for public workers to put themselves at risk because someone flushed a bulky item down a toilet.

“When they push the handle, no one really understands or cares what happens to it,” explained Scarpa, who believes people began flushing items because they feared leaving them inside the house until garbage day.

“We had to go and unplug pumps every day,” he said. “If you don’t unplug them, they’ll overheat, and they’ll burn out. And these things aren’t cheap.”

Public servants performed crucial roles during the pandemic. Many put in longer hours and took on additional responsibilities, such as tracking coronavirus cases or going door-to-door to warn citizens of COVID-19 hazards.

They paid a heavy price for keeping America’s cities and counties operating.

In New York alone, more than 100 transit workers died of COVID-19. Many other public servants have been infected nationwide.

Despite the risks they faced, these workers and their unions, including the USW, had to fight for commonsense safety measures.

Wanda Howard, president of USW Local 12160, battled the South Central Connecticut Regional Water Authority to provide PPE for frontline field representatives.

She demanded laptops for union members with health risks so they could do their jobs remotely. She argued for more sick leave so workers could stay home when they felt unwell instead of exposing others to illness on the job.

In recent months, field workers answered only emergency calls at customers’ homes. But as the lockdown ends, Howard worries that customers will deluge authority officials with routine service requests, increasing the chances that her members will encounter someone with COVID-19.

“People who want water service are not going to say they’re sick or somebody in the house is sick,” Howard explained. “They’re just not going to admit to that. My fear is that they’re going to open up appointments and want our servicemen to put themselves more in harm’s way.”

Already, she said, some customers greet union members at the door without masks. At one job site, a contractor helped himself to a worker’s wrench, even though COVID-19 can live on surfaces.

As local governments resume regular operations, it’s important for elected officials to stress the crucial work that public servants do and the collective effort needed to protect them.

That means insisting that customers report any illnesses in a home before crews arrive for service calls. It means demanding that homeowners wear masks and give workers plenty of space to make repairs or perform inspections.

And it means reminding residents to wash their hands frequently, maintain social distancing and take other steps to guard against COVID-19, even if infection rates continue to fall.

“If they stay safe, then we stay safe,” Howard said.

Workers’ lives are at stake. Essential services are as well.

In addition to handling service calls, the 125 members of Local 12160 monitor chemical levels in the drinking water and operate the authority’s offices. If COVID-19 swept through the workforce, Howard noted, more than 400,000 people in 15 communities could face service disruptions.

Workers know the hazards they face better than anyone else.

That is why they deserve extensive input into workplace safety plans.

When the pandemic hit, for example, the Niagara Falls Water Board asked Glenn Choolokian for help.

Choolokian, president of USW Local 9434, developed a safety plan with advice from labor and management that protected workers and kept the water flowing. He split the workforce into teams that rotated one week on the job and one week off so a surge in infections couldn’t devastate the entire operation.

Now, as the authority resumes more regular operations, he tells union members to contact him if they encounter hazardous conditions or other problems.

As Choolokian sees it, the pandemic requires an unprecedented level of cooperation—one that could make unions and employers partners in pushing for new workplace standards and other ways to enhance safety.

“It’s time to look at things differently,” he said. “I think we have to educate ourselves and see if there’s new equipment, new ideas, new ways of doing things.”

The local promoted public involvement in worker safety through social media posts, and it encouraged local businesses to make and donate PPE. In tight-knit Niagara Falls, Choolokian said, it’s been easy to get residents’ buy-in.

In coming months, that kind of support will become ever more important.

The COVID-19 economic slowdown caused many businesses to close or scale back operations, reducing the tax revenue collected by local governments.

At a time when communities must do more to protect public workers, some may try to cut corners instead. Scarpa fears that towns will cut jobs or slash budgets, straining already-vulnerable workforces.

In a crisis like that, public servants will rely on the public to stand with them in demanding that officials implement aggressive safety plans and provide the other resources that workers need.

“We can’t make these places run with bubble gum and paper clips,” Scarpa said.

This article was produced by the Independent Media Institute. Printed with permission.

About the Author: Tom Conway is the international president of the United Steelworkers Union (USW).


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FY 2019 OSHA Budget Is Here: Good News, But More Work to be Done

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For the first time practically in recorded memory, the Labor-HHS-Education budget, which includes OSHA, MSHA and NIOSH, was passed and signed into law before the beginning of the new Fiscal Year — October 1st.  The final OSHA budget actually contains a $5 million increase over FY 2018 and $8.8 million over the President’s FY 2019 Request. We can thank the Senate for that, considering the final budget is a whopping $12.5 million over what the House wanted.

Highlights include:

  • The total OSHA budget is $557.8 million, a $5 million increase over FY 2018
    • $1 million increase for federal enforcement,
    • $1.5 million increase for state plans
    • $2.5 million increase for federal compliance assistance ($3.5 million will be spent on the Voluntary Protection Programs)
    • Susan Harwood Worker Training Grant program continues to be funded at $10 million — despite the Trump administration’s continuing efforts to kill it.
    • There are no “poison pill” riders — attempts to kill silica enforcement or OSHA’s electronic recordkeeping standard.
  • The MSHA budget is level funded.
  • NIOSH will receive  $336.3 million (a $1 million increase over FY 2018).
    • Trump’s proposal to transfer NIOSH to the National Institutes of Health and slash the NIOSH budget was rejected. Funding for the Educational Resource Centers, Agriculture, Forestry and Fishing Research Centers and other NIOSH programs was maintained.
  • A few other Labor Department programs — Wage and Hour Division, Bureau of Labor Standards and the Office of Labor Management Standards — also got small increases although funding for employment services was cut.

A Word of Warning

But don’t get too happy. While these small increases (or level funding) are good news considering who’s in the White House and in control of Congress, funding for virtually all of the labor programs has been basically frozen for years. The total OSHA budget, and some line items like State Plan funding, are still lower than they were in 2012, as you can see in the table below.  And while the budget hasn’t shown much change, the  costs of operating these programs have increased, resulting in declining staffing levels and program activity.

As AFL-CIO Safety and Health Director Peg Seminario summarizes, “we have a victory holding the line, but much more work to be done.”

This blog was originally published at Confined Space on October 3, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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