NC Labor commissioner says COVID-19 isn’t a workplace threat that requires safety rules

The state Department of Labor will not impose additional regulations requiring employers to protect workers from the coronavirus, according to a letter from N.C. Department of Labor Commissioner Cherie Berry.

The letter was sent to worker advocacy groups that had demanded the department take stronger action to stop the spread of COVID-19 in workplaces.

Berry said such action is outside her department’s authority and downplayed the risk posed by the virus to workers.

“While I am not dismissing the tragic deaths that have occurred as a result of this virus, statistically, the virus has not been proven likely to cause death or serious physical harm from the perspective of an occupational hazard,” Berry wrote in the Nov. 9 letter.

Berry noted that on Oct. 26, as an example, less than 1.5% of people who had contracted COVID-19 in North Carolina died from the virus.

She wrote that most of those deaths were people over the age of 65, who are generally “no longer active in the workforce.”

Public health officials contest this logic.

“This is not a disease to gamble with,” Department of Health and Human Services spokesperson Kelly Haight said in response to a request for comment on the letter from The News & Observer. Haight noted that “people of all ages play a role in transmission of COVID-19 to older North Carolinians.”

Worker advocates say the letter is consistent with the deregulatory approach of Berry, a Republican, who has been elected to five consecutive terms as commissioner.

“She’s essentially saying, ‘I’m abandoning my mission to protect workers because I’m buying into myths and lies that COVID-19 is not serious and we really don’t know that much about it.’ And that’s just not true,” said Debbie Berkowitz, director of the Worker Safety and Health program at the National Employment Law Project and former chief of staff at the U.S. Occupational Safety and Health Administration. “This is really a dereliction of duty.”

Asked for response to the criticism of Berry’s letter, DOL spokesperson Dolores Quesenberry wrote, “The letter from Commissioner Berry speaks for itself.”

Berry is retiring in January, to be succeeded by Josh Dobson, a Republican elected to the position on Nov. 3. Thursday afternoon, Gov. Roy Cooper said he hoped the department would be more proactive under Dobson.

“I hope we do have a more active role by the Department of Labor (going forward),” Cooper said while touring a PPE manufacturing plant in Pittsboro. “We’ve provided a lot of guidance to businesses on how to protect their employees and their customers. And many North Carolina businesses have followed that guidance and even have done more, but there are always some that don’t. I look forward to talking with incoming Commissioner Dobson about things that we might be able to do.”

Berry’s letter came in response to an October petition for DOL rulemaking by a half dozen worker advocacy organizations.

The rules they proposed would require all employers to develop a COVID-19 response plan, provide workers with face masks, ensure adequate ventilation, require workers to report symptoms of COVID-19 and self-isolate if they have symptoms.

Thanks to “lack of enforceable COVID-19 workplace requirements,” the petition said, workers throughout North Carolina “are not safe at work.”

NC Department of Labor’s COVID-19 response

In her written response, Berry repeatedly denied the importance of workplaces as vectors of viral spread. She argued that most instances of exposure would likely not fall under her office’s jurisdiction, and said it “may be very difficult if not impossible to prove that the illness is work-related.”

But public health data shows workplaces do contribute to community spread.

There have been 280 reported clusters at workplaces, with 6,636 associated cases and 30 associated deaths through the end of November, according to the state health department, including 4,047 cases associated with meat processing plants alone. These numbers do not reflect cases not associated with a cluster. Although the race and ethnicity of the cluster cases is not published, the state’s animal agriculture industry is made up of a largely Latino immigrant workforce.

Meanwhile, nearly 4,000 North Carolina workers filed complaints about COVID-19 safety concerns from the start of the pandemic through the end of October.

The department has issued citations to five employers for COVID-19-related reasons, but all were connected to investigations the department pursued in response to a workplace accident or fatality, or a non-COVID-19-related hazard.

“[Commissioner Berry] has not been interested in going out of her way to do anything to protect workers if it burdens business in any way,” said Clermont Ripley, co-director of the Workers’ Rights Project of the North Carolina Justice Center, one of the organizations on the petition. “It is just another example of how these workers who we now call ‘essential’ and recognize how important they are, are still being treated as disposable and as a cost of doing business.”

Lack of worker safety protections

During the nine months that COVID-19 has spread across the state, the Department of Labor has not adopted or amended any health and safety standards specific to COVID-19. The department has instead issued voluntary guidance and conducted educational site visits to employers who opt in, efforts Berry argued in the letter would be “hurt by the adoption of rules that would require NCDOL to become more of a regulatory entity.”

In June, Gov. Roy Cooper required business owners to enforce the mask mandate among employees and customers or face a citation from law enforcement. But numerous law enforcement officials said they wouldn’t enforce the order. Cooper introduced another executive order before Thanksgiving making the masked mandate enforceable against individuals, not just employers. It’s unclear if, or how widely, law enforcement agencies are enforcing it.

The groups that proposed the rule, along with other members of the N.C. Farmworker Advocacy Network, have held several events to call on the governor and DOL to protect workers, especially at farms and food processing plants, where there have been around 5,000 cases of COVID-19 and 21 deaths in North Carolina, according to data collected by the Food & Environment Reporting Network.

After pressure from these groups, Cooper promised an executive order over the summer with sweeping protections for produce farm and plant laborers, including social distancing measures, sanitation, COVID-19 screening and improved access to testing.

Fourteen states have adopted similar COVID-19 worker safety protections.

But the DOL, the Department of Agriculture, and the Department of Health and Human Services pushed back, The News & Observer previously reported.

In an Aug. 31 letter, Berry told the governor that her department would not enforce the executive order, citing “legal and resource (time/staff) concerns.” If the department received a related complaint, she said, the staff would likely respond with a “letter to the employer outlining the allegation and informing the employer of the EO requirements.”

The letter concluded, fully underlined: “Should you decide to issue this EO, I respectfully ask that you take care not to publicly overstate the role of the NCDOL regarding enforcement.”

Less than two weeks later, the governor’s office decided not to issue the order.

Thousands of worker complaints statewide

By failing to enact workplace protections, advocates say NCDOL isn’t just abdicating its responsibilities to workers, but may be violating federal law.

North Carolina is one of 22 states that operate their own job safety programs, rather than a program operated by the federal Occupational Safety and Health Administration.

But according to the Occupational Safety and Health Act of 1970, those states are obligated to develop standards “at least as effective in providing safe and healthful employment” as those established by OSHA.

While OSHA has not implemented new regulations in response to the pandemic, it has issued citations: 244 since the start of the pandemic, with penalties totaling over $3.3 million.

In September, for example, OSHA proposed a $15,615 penalty for a meat-processing plant in Colorado for failing to protect employees from exposure to COVID-19. OSHA said the company had violated the “general duty clause,” which states that workplaces must be free from recognized hazards that are “causing or likely to cause death or serious physical harm.”

That is the regulation Berry said in her letter does not apply to COVID-19.

“The available data does not support that death or serious physical harm would be the likely outcome for the majority of those who contract the disease,” she wrote.

The long-term risks of COVID-19 are not yet known, according to the Centers for Disease Control and Prevention.

Quesenberry, the DOL spokesperson, said in her email that since OSHA has not issued a COVID-19 regulation, NCDOL has met the “at least as effective” requirement.

The advocacy groups that received the letter are considering filing a complaint with OSHA asserting that the state has failed to uphold its responsibilities. They’re also considering seeking judicial review, alleging that the department’s denial of the proposed rulemaking was “arbitrary and capricious.” The deadline to file for judicial review is Dec. 9.

Advocates are also hopeful that incoming Labor Commissioner Dobson, currently a state representative, will be more proactive. In an email to The N&O, Dobson declined to make any commitments.

With regard to rulemaking on coronavirus-related issues, he wrote, “I am not willing to make a commitment on any policy position before talking with all stakeholders to fully understand the implications that those policy decisions will have on employers and employees.”

Ilana Dubester, executive director of El Vínculo Hispano/The Hispanic Liaison, a signatory to the petition, said she hopes these “stakeholders” include workers, advocates and communities where “entire families are sick, where people are in the hospital for a month and now have hospital bills to deal with because so many of them are uninsured or underinsured.”

“This is the first, in our lifetime, mass pandemic, and it might not be the last,” Dubester said. “And there’s a vacuum of authority and a vacuum in leadership in protecting all of North Carolina’s people, not just essential workers, when we are not willing to issue rules for employers and not just recommendations for employers.”

News & Observer reporters Aaron Sanchez-Guerra and Zachery Eanes contributed to this story.

This story was originally published December 4, 2020 at 3:41 PM with the headline "NC Labor commissioner says COVID-19 isn’t a workplace threat that requires safety rules."