Nearly 1,000 people have filed complaints during the first month of a new state system meant to ensure employers are following a set of rules to protect their workers and customers from exposure to COVID-19. That’s certainly good news and a good first start, according to unions and labor rights groups. Workers at restaurants and hospitality, retail, factories and manufacturing, health care, casinos and entertainment could all stand to benefit.
Under the Trump administration, critics contend, the Occupational Safety and Health Administration largely abdicated its role of setting up and enforcing business safety mandates. Instead, the agency issued voluntary guidelines and left enforcement to the states.
“The federal government hasn’t taken this step. OSHA has not yet put forward COVID-19 health and safety standards,” Gov. Phil Murphy said at the end of October. “Like so much else, where Washington has failed to lead, New Jersey will step up to fill the void.”
In a statement in October, the U.S. Department of Labor, which houses OSHA said the agency remained committed to protecting workers. “OSHA has preexisting requirements and standards that not only remain in place and enforceable, but also apply to protecting workers from coronavirus,” the department said.
The agency declined to comment for this story. Officials have in recent weeks announced fines against several dozen New Jersey employers, most of them long-term care facilities. “It’s really just a little bit, and it’s really about respirators and providing fit-testing,” said Debbie Berkowitz, a former senior policy advisor at OSHA, and chief of staff at the agency during the Obama administration. And the fines have been “for tiny infractions like not recording the deaths” of health care workers.
The governor’s Executive Order 192, which went into effect on Nov. 5, created standards that employers must meet to keep their workers and customers safe from the virus. The system is run jointly by the state Department of Health and the Department of Labor and Workforce Development.
The governor and state health officials argue that the state standards fill the gap left by OSHA. The Murphy administration issued a litany of similar rules since large-scale business reopenings began in the early summer: sanitization, indoor facemask requirements, six-foot physical distancing, staggered shifts to avoid overcrowding, protocols for quarantining COVID-positive workers, and how to screen potentially infected employees.
But without a state-level system of private sector enforcement, many workers said they have fallen through the cracks while business owners get away with skirting the rules, at the expense of their own safety.
“If you can get a hold and control the workplace as a source and mitigate the spread, then you’re going to bring down the numbers, bring down the hospitalizations, bring down the deaths,” Berkowitz said.
Debbie White, president of the Health Professionals and Allied Employees, which represents nurses, praised the order even though she said it exempts hospital and health care workers. Safety would be enhanced if OSHA fashions a “national standard that comprehensively addresses infection control in workplaces including health care facilities,” like what many anticipate would be done under the administration of President-elect Joe Biden, White said.
With the state in the midst of a second wave of the pandemic, efforts to prevent workplace outbreaks become critical, said Louis Kimmel, executive director of the worker’s right group New Labor.
Fred Potter, president of Teamsters Local 469 in Hazlet, and vice president for the International Brotherhood of Teamsters, said Murphy’s order “sends a clear message that employers have a responsibility to keep their workers safe, and provides a mechanism for enforcement when employers fail to do so.”
How it works
Murphy signed the order in early November, following an NJBIZ report over the summer that highlighted what unions and labor rights groups argued was an inefficient system.
In the place of OSHA and a statewide mechanism, there was instead a “triage system with county prosecutors and the departments of health,” Adil Ahmed, director of organizing at the progressive advocacy group Make the Road New Jersey, said over the summer.
The order requires that workers have to undergo health screenings at the start of every shift, while everyone present at the workplace must remain socially distanced. Employees must be made aware if they’ve been exposed to COVID-19 at the workplace, and businesses must create a system for quarantining COVID-positive workers and screening potentially infected employees.
Employees must wear masks, provided at the expense of the business owner, who must also supply sanitizing materials to customers and workers. High-touch areas must be routinely cleaned and disinfected, while employees must be provided hand-washing breaks throughout the day. Employees can use the “COVID-19 Worker Protection Complaint Form” to report unsafe conditions at their workplaces.
Angela Delli-Santi, a spokesperson for the state Labor Department, said in a Nov. 23 email that the state received 907 complaints, more than double the 378 number listed in a Nov. 13 statement announcing the first set of numbers.
Of the most recent total, 403 were assigned to investigation and 34 were assigned to other agencies such as OSHA. Sixty-six complaints were resolved, she said, and complaints have been from both customers and employees, “who have raised concerns primarily about mask wearing, hand sanitizing and/or social distancing.”
Lawmakers have proposed a variety of worker’s rights bills, some of which create entirely new protections and others simply enacting Gov. Phil Murphy’s executive orders into law. “It protects workers, but it doesn’t go far enough,” Assemblywoman Valerie Vainieri Huttle, D-37th District, and the sponsor of several worker’s rights bills, said of the governor’s Executive Order 192. “[T]he EO is obviously a step in the right direction, but we need to codify this and make it law.”
Assembly Bill 4268, which Huttle introduced on June 15, creates a 24/7 worker complaint hotline, and sets up the means by which the state can follow up on those complaints and investigate them or ensure businesses rectify the issue. The bill also creates a “right to refuse to work,” meaning workers can stay away if an employer fails to take “sufficient measures to alleviate exposures” to COVID-19. And they would be paid by the employer for the hours they did not work while the business addressed those conditions.
The state Labor Department would need to create a set of standards which, if they are not met, means staff could refuse to report to work, and would continue to get paid for the hours that they would be typically doing work. It was also intro-duced in the Assembly on June 15, where it has not moved.
Another bill, Senate Bill 2454, would require those employers to give first priority to any workers they laid off during the state’s current pandemic state of emergency. Lawmakers introduced it in the Senate on May 7 and the Assembly on May 14, where it has not moved.
The state’s paid sick leaves covers employees at companies of any size. At the federal level, the Families First Corona-virus Response Act provides 80 hours of sick pay and makes employees eligible for up to 12 weeks of paid family leave. But the federal law exempts companies with less than 50 and more than 500 employees.
And the New Jersey law, unlike its federal counterpart, allows workers to qualify for sick time if they’re using it in an at-tempt to avoid exposure to COVID-19. The state’s family leave act does not exempt businesses from offering paid leave, but it does exempt businesses with fewer than 30 employees from offering workers back their position after taking family leave.
Yarrow Williams-Cole, workplace justice director at the worker advocacy group New Jersey Citizen Action, alleged that “fear of retaliation and actual retaliation” prevents “employees from actually taking such basic and necessary things to prevent the spread of the virus.”
A proposal that Sen. Loretta Weinberg, D-37th Disctrict, sponsored, Senate Bill 2453, creates 15 days of emergency paid sick leave for essential workers, and expands the state’s default paid sick leave from five to seven days. It also loosens requirements for workers to use the paid time off.
Amid the efforts to help workers, employers argue that they also need protection and many support another proposal under consideration in both Trenton and Washington that would protect employers from COVID-related liability. As part of negotiations for a third iteration of the federal COVID-19 relief bill, Republicans in Congress are pushing for business liability protection against legal claims from a customer or worker that caught the virus while on the premises.
In New Jersey, Assembly Bill 4189 would establish the same kinds of protections for businesses. It was introduced in June and three days later in the Senate but has only Republican sponsors in both chambers. The bill has not moved.
“You have so many small businesses trying to stay alive after being forced to shut down that have little cash left, so a single lawsuit could wipe them out even if the owner did nothing wrong,” Eileen Kean, director of the New Jersey chapter of the National Federation of Independent Businesses, said in late May.
Labor rights groups criticized the measure. Dena Mottola Jaborska, associate director at New Jersey Citizen Action, cau-tioned that the bill would offer blanket immunity and “allow for recklessness on the part of business owners.”
“This bill and all immunity bills are a rollback of worker and public protections, letting employers who fail to operate healthy and safe workplaces, off the hook from any accountability,” Jaborska said.
Murphy signed Senate Bill 2380 in September creating the presumption that essential workers – in industries such as health care, transit, grocery and gas retail and public safety – who came down with COVID-19 contracted the disease at work, thereby making them eligible for worker’s compensation and other protections.
Any absences from work because of the illness would be counted as “on-duty time” and cannot be used against a work-er’s paid sick leave balance. It would be retroactive to March 9, when Murphy declared a public health emergency in the state.
The order authorizes the state Labor Department to inspect private workplaces. The results of those inspections or outreach from state officials could range from an informal commitment by the employer to address the issues to heavy fines and workplace shutdowns.
“The goal of the order is education and compliance, not punishment or shutdowns,” Delli-Santi said in a Nov. 18 email. “We are striving to ensure workplaces that remain open amid COVID-19 are healthy and safe and that employers are following state and CDC guidelines, which the vast majority are already doing.”
Inspectors contact business owners to let them know that a complaint has been made and assigned for investigation. The owners are informed of the executive order and of guidelines set by the state and recommended by the Centers for Disease Control and Prevention.
Employers must give verbal assurance that they’re complying or that they plan to do so, and follow-up with verification, if required, according to Delli-Santi.
“Such verification might be a photograph, or a purchase order for hand sanitizer or masks. A confirmation letter or email from the business also would be required,” she continued. “The overwhelming number of employers in New Jersey are operating within the guidelines.”
Under the system Health Department officials have direct access to data they can use for contact tracing efforts. That means outbreaks originating at a workplace could be snuffed out before anyone potentially infected is able to spread it to others. They would be advised to self-quarantine and get tested and asked to provide contact information for anyone they’ve interacted with since their potential exposure.
“Creating some kind of data collection system to keep track of the cases in the workplace,” is valuable said Todd Vachon, faculty director at the Labor Education Action Research Network at Rutgers University, “because that’s really how you’re going to stop the spread, identify hotspots, what workplaces, specifically, geographics.”
Kevin Brown, New Jersey vice president for 32BJ SEIU, which represents thousands of service workers across the state, maintained that violations should be publicized. “This would make for strategic enforcement, and better tracing,” he said in a statement. “If we add a public database, we could then work on better implementation and enforcement.”
Too many rules?
Business groups have complained that the requirements are being imposed on employers already bound by restrictions for doing business during the pandemic. And they’ve been slammed by loss of profits because of reduced capacity and the costs of these COVID-19 mitigation protocols in place even before the order was signed. Keeping the workplace safe and sound is simply a good business practice, never mind the public optics, the groups argue.
“It places the responsibility on the business community, at a time when the governor has been saying for weeks and months that any kind of spike in the cases is not due to the business community, it’s due to private gatherings,” said Tom Bracken, president of the New Jersey Chamber of Commerce.
“The governor has repeatedly stated what we have said all along – that the great majority of our businesses have already implemented the protective safeguards that are required of them,” Michele Siekerka, president and chief executive officer of the New Jersey Business and Industry Association, said in a statement.
“Many have gone beyond because they want to protect their employees and their patrons. They want to give themselves the best shot possible to stay open. They don’t need another mandate to do it.”
But worker’s rights groups, and some lawmakers, contend that despite the good intentions of businesses, they still need to be held to a legal standard and held accountable if they do not meet those expectations.
“I understand it’s really tough for employers today, and certainly for small businesses, to keep operating,” Senate Majority Leader Loretta Weinberg, D-37th District, who sponsored several worker’s rights bills both before and during the pandemic, said in an interview. “But in order for them to keep operating, they need a safe and healthy employee labor force.”
Getting the word out on the new system remains a challenge. “There wasn’t much of a public campaign around it,” Vachon added, lamenting that the announcement and order were both “right around the time of the elections and the whole news cycle … this one kind of got buried.”
The Protect NJ Workers Coalition, a group of labor groups, activists and community leaders that campaigned on the issue for more than six months, is coordinating with the Occupational Training and Education Consortium, also part of Rutgers, to train workers on how they can access and use the complaint form, and the rights they have under the new executive order.
Workers will be trained on how to identify COVID-19 health and safety hazards in the workplace, and how they can report workplace violations, according to an October statement from the immigrant rights group Make the Road NJ, a member of the coalition.
Kimmel said that over 2,100 people will be trained under the program, mostly workers, but also members of labor rights groups meant to raise awareness of the new worker protections. The number is a “small sample,” he acknowledged. “But we do feel we’ll have a high impact, just based on the experience that people have doing this.”
Many of the most vulnerable jobs are filled by African-American and Latino people, which are “disproportionately being harmed” by the pandemic, according to Vachon. “How many actual working-class folks … in service-sector jobs, low-wage jobs, actually know about this? That’s where the training and getting the public education piece out there” is vital, Vachon said.
Waiting for a new OSHA
Most worker’s rights groups and labor experts contend that OSHA under the Biden administration will likely focus more on employee protections. When Biden takes office on Jan. 20, he will likely issue an OSHA emergency standard, “with some basic common-sense protections to mitigate the spread of COVD-19 at work,” according to Berkowitz. “I would think they would try to get out by the end of February, and until they do, New Jersey’s EO is all the workers have,” she added.
At this writing, the president-elect has not named a labor secretary or OSHA leadership. The heads of some of the nation’s largest labor unions have been mentioned as potential appointees. Biden’s transition team declined to comment.
“Maybe what happens under OSHA, maybe this is a complementary piece,” Debra Coyle McFadden, executive director of the NJ Work Environment Council, said of the governor’s recent order. “To me, the best-case scenario is that OSHA does start enforcing standards more, the existing standards, they issue emergency standards and New Jersey also has this mechanism… so it’s almost like they can work side by side.” McFadden’s group is one of over a dozen involved in the training about the order.
Vachon said he envisions a Biden OSHA pursuing a more aggressive naming and shaming approach, that is, to “uplift very high-profile cases … and shining a spotlight on particular cases.” He said penalties now imposed for violations are inadequate. “You can just write the check and keep breaking the rules. Really it’s the public shaming that makes businesses want to comply.”
Several existing mechanisms within OSHA, like the Illness and Injury Reporting and Record Keeping Rule, could be used by a Biden OSHA to collect workplace data on COVID-19 cases, Vachon said. That in turn could be part of a federal but hyperlocal contact-tracing effort.
And the federal effort, according to Vachon and Berkowitz, could include several provisions signed by Murphy. “Employers will already be in compliance with whatever Biden puts out if they start following the governor’s EO. So that’s good for New Jersey employers,” Berkowitz said.
But Marc Freedman, vice president of employment policy at the U.S. Chamber of Commerce argued that OSHA’s approach under Trump was a better way to take the needs of businesses into account while still protecting workers and customers. “What employers are supposed to do flows through a guidance structure rather than a regulatory structure, but that’s not a bad thing,” he said. “The way we look at it, employers are very much on notice that they are required to protect their employees.”
Stricter regulations, like what he contended would be inevitable under Biden, mean businesses would “not be judged on whether they protected their employees… but whether they satisfied a lot of specific details that may or may not be the best way to operate in the workplace.”