Last month, a collection of labor interest groups that includes the AFL-CIO, NAACP, and NC Raise Up filed a petition for rulemaking with the North Carolina Department of Labor, seeking issuance of an emergency workplace safety standard intended to protect employees from exposure to the coronavirus. The federal Occupational Safety and Health Administration has declined to issue a nationwide standard, and with the exception of Virginia, no state OSHA plans in the Southeast have issued their own COVID-19 regulations.
The petition cites the high number of employee complaints to NCOSHA, the relative lack of formal investigations, and claims that workers are becoming sick and dying as a result regulatory enforcement lacking. These complaints involve shortages of personal protective equipment, failure to maintain social distancing at work, and insufficient information provided to employees about COVID-19 infections among co-workers. The petition identifies the health care, agriculture, and poultry and meat processing industries as areas of particular concern.
The petition attaches a 22-page proposed safety rule that would apply to all North Carolina businesses, not just those industries cited as showing evidence of workplace COVID-19 spread. Each employer would be required to conduct a written COVID-19 assessment and develop a preparedness and response plan for distribution to employees. Employers would have to provide PPE to employees, and retail businesses would be required to develop and enforce mandatory face mask policies for customers. Employers would also have to consider and implement where feasible telework and staggered schedules for employees. The rule contains cleaning, ventilation, mandatory temperature checks, quarantine requirements, and other elements. Employee COVID-19 cases would have to be reported to public health officials.
The rule would give employees who believe they are facing unreasonable exposure to COVID-19 the right to refuse to work. Employees could also go directly to court to seek private enforcement of these anti-retaliation measures. If adopted, these rules would prove challenging for employers, especially small businesses, to meet. It is unlikely that many businesses have the ability to conduct the required analysis and prepare response plans without engaging safety consultants and legal counsel. There is very little chance that the current labor commissioner will grant this petition. However, a denial by NCDOL may result in a lawsuit seeking to force adoption of the standard. Its release may also reflect a post-election effort to impose significant COVID-19 rules on North Carolina employers.
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