Who should protect workers?

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At the Cranford headquarters of the National Tree Co., which specializes in artificial Christmas trees and related décor, eight of the office’s 30 employees tested positive for COVID-19. Workers allegedly were forced to come back into the office while sick, or without self-quarantining for 14 days, according to an April 8 complaint filed with the federal Occupational Safety and Health Administration.

At Spectrum Chemical Manufacturing in New Brunswick, an employee tested positive for COVID-19 while another four left the same department sick, but the workstations weren’t properly sanitized, according to an April 1 complaint filed with OSHA.

And at Hikma Pharmaceuticals in Cherry Hill, an employee showed symptoms of COVID-19, and subsequently tested and self-isolated, according to a March 24 complaint with OSHA. But the employer allegedly hadn’t notified other workers that they may have been exposed, nor did they implement 6-foot physical distancing or provide enough personal protective equipment – masks, gloves, gowns and face shields – or sterilize the area where the employee worked.

“We had zero incidents of COVID-19 spread in any of our offices and we immediately introduced thorough safety procedures in all our facilities to screen and protect our employees,” said Steve Weiss, a spokesperson for Hikma.

Spectrum and NTC did not respond to requests for comments.

A review of data made public by OSHA shows that thousands of complaints about New Jersey businesses go unresolved, and so the few hundred in New Jersey that actually reach a conclusion are more the exception than the rule. In New Jersey, just shy of 400 worker complaint cases filed with OSHA, out of the thousands since March, have been closed. The agency has, according to critics, largely abdicated its role in enforcing standards meant to protect workers from COVID-19, which has infected nearly 190,000 New Jerseyans and claimed over 15,000 lives.

The state generally gets high marks for setting safety standards, but enforcement has been spotty, according to unions and worker advocates. Employers and business groups argue that voluntary compliance is strong – noting that it’s good business to maintain a safe workplace. But even some state officials acknowledge that more could be done on the enforcement front. So unless the COVID-19 pandemic fades quickly, the state government will likely pursue greater authority to ensure that its high standards are met.

‘Missing in action’

“Federal OSHA, which normally enforces the OSHA law, has been missing in action,” Debbie Berkowitz, the worker health and safety program director for the New York City-based National Employer Law Project, said in an email.

“They have merely issued advisory guidance and posters—that they are not enforcing. And the guidance is quite vague and filled with language such as ‘strive for’ or ‘consider this.’”

U.S. Labor Secretary Eugene Scalia has argued that OSHA’s approach is enough to ensure employers are protecting their workers from COVID-19. “We do not believe that for every new challenge, there must be a new federal rule,” he said during a June appearance at the conservative Washington, D.C. think tank the Heritage Foundation.

“Rather, we believe we already possess the enforcement authority we need and that our current approach is the best means to protect workers and give employers guidance and confidence in the steps to be taken to provide a safe workplace and satisfy their obligations,” he added.

State inspections

The New Jersey Department of Labor and Workforce Development has no state-level equivalent of OSHA; that is, a bureau that conducts private workplace inspections. The state agency only inspects public workplaces, counting on OSHA to cover the private sector.

Known as the Public Employees Occupational Safety and Health Program, this state-run office conducted 182 COVID-19 workplace investigations, 71 of which are ongoing, according to Dawn Thomas, a spokesperson for the Department of Health.

New Jersey workers are “on their own,” Berkowitz said. Instead of an investigation, OSHA “merely sent a letter to the employers to self-investigate.”

She added that “the state must create a totally new enforcement mechanism to enforce these mandates” like the requirements set up in directives from Gov. Phil Murphy and the Health Department for businesses to operate during the pandemic.

“[B]ecause federal OSHA has failed and decided not to enforce the law … the state must now create an enforcement mechanism to enforce the orders.”

In the place of a statewide mechanism has been a “triage system with county prosecutors and the departments of health,” said Adil Ahmed, director of organizing at the progressive advocacy group Make the Road New Jersey.

The governor took the approach “that it’s more [the county’s] authority than the state authority to do that,” he added. “We should be further along the process now. It’s time to have a more sophisticated system.”

The state maintains an online executive order violation complaint form. Complaints must include the name and address of the business, and the type of violation, such as not allowing remote work for non-essential employees, not practicing social distancing, or hosting outdoor or indoor gatherings that are much larger than the state-imposed crowd limits.

If a complaint does not fall into one of those categories, the form provides up to 250 words to explain any “potential violation” and requires descriptions of “what exactly is the business or entity doing that is in violation of the executive order.”

According to Steven Barnes, a spokesperson for the Office of the Attorney General, the state’s Office of Homeland Security and Preparedness sorts the violations into a spreadsheet by counties. The data is then sent to the New Jersey State Police and the Office of the Attorney General and on to the 21 individual county prosecutor’s offices, who in turn decide whether to investigate.

“Since July, we have been sending the updates twice weekly,” Barnes said.

Many of the prosecutor’s offices and county health departments contacted by NJBIZ could not provide details on cases referred to their jurisdiction. In the case of Mercer County, officials said local health departments at individual towns and cities followed up on complaints.

Camden County authorities said they have received complaints on EO violations committed by employers, but were not able to provide data on how many inspections and enforcement actions they carried out.

In Burlington County, the complaints are forwarded to the local police department and the county prosecutor’s office.

A spokesperson for Warren County said they hadn’t gotten any complaints through the state system, though a violation was brought to the attention of the prosecutor’s office via the local health department.

“In the one case reported by our health department, people from the prosecutor’s office and Health Department discussed it with the business, no enforcement action was taken,” said Warren County spokesperson Art Charlton.

Morris County officials expressed confusion over why NJBIZ had contacted them and not the state.

“[Y]ou are looking for data on what amounts to workplace safety violations or state labor law violations, neither which come to the county administration,” said Brian Murray, a spokesperson for Morris County.

“OSHA handles safety violations, as does a branch of the state Labor Department,” he said. In general, the state Labor Department probes wage and hour violations, and practices that violate state labor laws.

Violations of the state emergency also have fallen to the State Police and NJDOH.

Murphy acknowledged that the state’s enforcement mechanisms leave something to be desired, and that there is certainly room for improvement. “I would not be opposed to strengthening, and that may be at the federal level,” the governor said at an Aug. 19 COVID-19 news briefing. “OSHA is something that I’ve spent a lot of time with Congress.”

He also cited the state complaint form and the process for collecting complaints. “But if you know of a specific situation, we’d love to know,” Murphy added.

At that briefing Murphy’s chief counsel, Matt Platkin, cautioned that the Labor Department has focused its resources on handling the surge of unemployment claims that have arisen as a direct result of the pandemic—nearly 1.5 million New Jerseyans.

“We are considering a series of potential options with respect to strengthening the state enforcement power but you also have to remember there’s a capacity issue as the Department of Labor does not typically enforce these types of protections in the private sector and they’re also principally concerned right now with processing unemployment claims,” Platkin said.

Meanwhile the extent to which or outbreaks of COVID-19 can be traced back to a private workplace is still not clear. The state Health Department only collects that data on long-term care facilities. Officials said local health departments collect data on private workplaces.

Local health officials in turn told NJBIZ that the state Health Department would most likely have that data.

The OSHA complaints all revolve around lack of social distancing, lack of PPE or working equipment, lack of temperature checks and symptom-screening, spotty cleaning procedures, and staff being forced to come into work even if they showed symptoms of the virus or were exposed to someone who tested positive for COVID-19.

“They aren’t obligated to follow the guidelines. So there is no requirement, there’s no mandatory enforcement at the federal level,” Ahmed said. “[T]he state should create guidelines and the state should say that ‘this is mandatory’ and if they’re not going to do it… they should come out unannounced and they should be able to respond to complaints from workers.”

Late in March, NJ Advance Media published the phone number for a state-run hotline where workers could report violations of COVID-related safety standards, namely not allowing remote working.

The outlet was asked to take it down after the number was inundated with callers; the online portal took its place.

“If we’re looking nationwide, New Jersey is definitely a top-tier state in terms of trying to protect workers and having these kinds of executive orders in place,” said Todd Vachon, faculty director at the Labor Education Action Research Network within Rutgers University.

But “enforcement is always a problem,” he warned.

Virginia was one of the first states during the pandemic to enact a state-level private sector OSHA.

California and Oregon have also taken similar steps, carrying out hundreds of workplace inspections and issuing dozens of citations.

“There’s an enforcement to it. Their OSHA also covers private-sector workplaces,” Ahmed said

Who is responsible

“From the very beginning when this all hit” there was “mass confusion,” Vachon said. “Employers from the beginning were not doing a great job.” Once the EOs came out, “we started to get a little better.”

Like many facets of American society, the pandemic has brought long-standing social and economic issues – simmering for generations – to a head.

Workplace protections have been no exception. The issue is whether the onus should be on the state to create mandates and enforce them, or for businesses to be good corporate citizens and act in good faith.
Senate Majority Leader Loretta Weinberg, D-37th District, who has sponsored many labor rights bills related to the pandemic, said she prefers the former.

“If current management or current people responsible act in a responsible way” then leaving it up to businesses could work,” Weinberg said in an interview. “But unless you have a law it doesn’t guarantee” adequate protections.

Business groups tend to support voluntary compliance, arguing that good corporate citizens make up the backbone of New Jersey’s economy and workforce.

“We’ve been offering guidance to a lot of our member businesses and companies and small businesses and sharing all the information that comes out of the federal and state government,” said Mike Egenton, executive vice president of government relations at the New Jersey Chamber of Commerce.

“I would say that the majority of businesses out there that are trying to operate have gone back to their establishment and brought their employees” on board “with procedures and protocols that have been laid out.”

Many companies that NJBIZ contacted were “essential employers” during the height of the pandemic here. Several, including Amazon, ShopRite, Walmart and pharmaceutical giant Bristol Myers Squibb, said they maintained high standards for sanitization, temperature checks and symptom-screening, use of PPE, social distancing and contact tracing.

Amazon said it notifies local health officials about positive cases, and tracks down employees who they contacted, requiring a 14-day paid quarantine if necessary. The online retail giant drew scrutiny amid reports that a COVID-19 outbreak at a Carteret warehouse in April led to dozens of workers getting sick.

“We’ve implemented 150 process changes on COVID-19 safety measures by purchasing items like masks, hand sanitizer, thermal cameras, thermometers, sanitizing wipes, gloves, additional handwashing stations, and adding disinfectant spraying in buildings, procuring COVID testing supplies, and additional janitorial teams,” the company said.

Marilyn Schlossbach, who chairs the New Jersey Restaurant & Hospitality Association’s board of directors, maintained that the vast majority of restaurant owners want to do the right thing.

“There’s always people who are looking to make out on something. I find that’s more rare,” Schlossbach, who owns the Langosta Lounge in Asbury Park, said in a recent interview. “In general, members of the restaurant association are good operators.”

And Dennis Hart, executive director of the Chemistry Council of New Jersey, a trade group for dozens of the state’s chemical manufacturers, said his group’s members have been “concerned like everyone else about making sure they were doing the right thing.”

“They tried to source as much PPE as possible. They did shift work. They assigned workers in pods,” he told NJBIZ.

The New Jersey Food Council, the trade group for food retailers such as grocery stores, said its members “remain committed to protecting the safety and health of their employees, suppliers and customers.”

That includes the use of PPE, plexiglass around cashier stations, more frequent cleaning and sanitization, cutting back store hours, reducing indoor capacity, establishing “special hours or checkout lanes for higher-risk populations” like the elderly, beefing up store security, and spreading out the hours that employees are assigned.

Many labor unions and worker’s rights groups are not convinced.

“We strongly believe that COVID-19 still poses a risk to grocery workers who were deemed Essential Workers,” Harvey Whille, president of the United Food and Commercial Workers Local 1262, said in an email. The union represents roughly 30,000 workers at some of the state’s major grocery chains.

“We have filed grievances and arbitration with several companies and continue to reach out to the public for support.”

Unite Here Local 54, the casino workers’ union, alleged earlier in August that Caesars Entertainment’s four hotels in Atlantic City hadn’t done enough to protect worker health.

According to Unite, Caesars hadn’t been doing temperature checks of guests, instead using verbal screenings that rely on the good word of the customers.

And the casino giant hasn’t complied with the Murphy administration’s requirements for daily room cleaning, the union said. It has done only lackluster enforcement of face-covering requirements among guests, failed to enforce 6-foot physical distancing requirements, and haven’t provided workers with enough personal protective equipment, Unite alleges.

“We can’t rely on these companies to do the right thing,” Unite secretary treasurer Donna DeCaprio said at the Aug. 6 press conference. “The workers are at risk and they need to be protected.”

Steve Callender, regional president for Caesars Entertainment, Atlantic City Region – which owns Caesars Atlantic City, Harrah’s, Bally’s and Tropicana – denied the allegations and maintained that the company has made considerable strides in protecting worker health.

“Some of the ongoing concerns still for many workers are the enforcement of the rules,” Vachon said. “There’s still a lot of fear – bus drivers, train conductors – about ‘what do I do about a passenger when they have no mask, is it my job to confront this person and is this person going to flip out on me.’”

Charles Hall, president of the Retail, Wholesale and Department Store Union Local 108 said that lack of compliance has centered on businesses not doing temperature checks, not providing masks and gloves, not requiring customers wear face coverings and not leaving enforcement to low-end employees, and instituting social distancing and limited capacity practices.

“We know that mandates work, as opposed to somebody shaking their hand and saying that they’re going to do the right thing,” he said in an interview.

The 14,000-member Health Professionals and Allied Employees union alleged that health care workers at many of the state’s hospitals were given non-functional PPE, if any, and worked with “the same misshapen, contaminated N95s [masks] for days and weeks because they could not get a replacement.”

That PPE shortage continues today, the HPAE warned in a 26-page report issued on July 20. And it could jeopardize the state’s reopening and its ability to respond to a second wave—highly expected to coincide with flu season in the fall.

Many nurses were not informed by hospital management that they were exposed to COVID-19, the report warns, and 1 in 5 members actually became sick, according to HPAE. Some were made to return to work even though they displayed symptoms, the union alleged, and at least six members died, the union added.

“There are many lessons to be learned after this first pandemic wave. Now is the time to reflect and analyze the mishaps that put lives at risk,” HPAE President Debbie White said in a statement to NJBIZ. “NJ regulators and healthcare facilities must include their frontline staff in the process of developing preparedness plans that reduce exposure, keep patients safe and improve patient outcomes.”

In a statement issued when the HPAE report was issued, the New Jersey Hospital Association highlighted its members efforts on behalf of health care workers. “New Jersey’s health care professionals confronted COVID-19 with bravery, commitment, tenacity and compassion,” the association said. “They encountered very difficult challenges as the world experienced a never-before-seen virus that hit with a ferocity that hasn’t been seen in a century. As one of the nation’s first hotspots, New Jersey’s hospital teams expanded bed capacity so no patient was turned away, identified the best treatments for a novel illness, launched the nation’s first COVID-19 clinical trials and provided battle-tested leadership that is now benefitting [sic] the rest of the country. Our health care workers’ experiences are an important part of understanding – and learning from – the systemic challenges faced by public health, the health care delivery system, the global supply chain and other sectors in the COVID response.”

Yarrow Williams-Cole, the workplace justice director at 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,” such as using sick days.

Some state lawmakers have taken up the cause of protecting workers and a variety of bills are moving through the Legislature to address many of the concerns expressed by labor groups and other activists.

The fate of those efforts remains unclear.

Next week: Part II, legislative responses

Safe at work: Lawmakers in New Jersey are trying to sort out which agencies should be responsible for protecting workers from COVID-19, while employers make the case for liability limits