Pandemic Workplace Protections Divide Congress

With hundreds of thousands of students returning in a couple of weeks to campuses in the University of North Carolina system, amid record high coronavirus hospitalizations, about 150 North Carolina State University faculty and staff members were so concerned they marched to present demands to campus administrators, accompanied by a van with a sign that said, “NCSU Mobile Morgue.”

And Gary Shipman, a lawyer and former University of North Carolina at Wilmington trustee, said concern is so high that he’s been approached by professors and workers at most of the system’s campuses about going to court to keep in-person classes from resuming, unless more is done to keep them safe.

“We are presently contemplating the filing of a proposed class action lawsuit to require their employers to provide conditions of employment and a place of employment free of hazards that are likely to cause serious harm, even death, to employees,” Shipman said in an email last week.

North Carolina is not alone. On several campuses around the country, professors and other workers on campuses, including custodians who have to clean potentially coronavirus-contaminated areas, have been submitting petitions over whether enough is being done to keep them safe, and questioning the wisdom of reopening campuses at all.

“The whole situation is completely unethical and profit-driven. If the NCSU administrators truly cared for the well-being of their workers and students, they wouldn't be inviting tens of thousands of people back onto campus in the next two weeks,” said Grace Ullman, president of the North Carolina State University Graduate Workers Union. She said only that she was aware of the conversations about a lawsuit.

The union, in the list of demands presented to the campus administration, said that resuming in-person classes and reopening dorms “will inevitably lead to avoidable deaths among our staff, students, and faculty,” insisting that classes remain only online in the fall and that students not be allowed to return to their dorms unless they have no place else to go.

“I feel like it’s obviously not safe to bring thousands of students back to campus,” said Wendy Brenner, a professor of creative writing at UNC Wilmington, who has questioned the system’s decision to fill dorms to full capacity.

Against this backdrop of worry, Democrats and Republicans in Congress remained divided over proposals that reflect the tension over pushing colleges, as well as the rest of the nation’s economy, to reopen, while also doing it safely. It’s one of a number of major divisions so saddling negotiations over passing another coronavirus relief package that White House chief of staff Mark Meadows told reporters after a meeting with Democratic leaders Wednesday, "We’re nowhere close to a deal."

Treasury Secretary Steven Mnuchin said among the issues negotiators are "far apart" on is a demand by Republicans that the next package include a provision making it more difficult for workers and others who contract the coronavirus to sue businesses, colleges, schools or charities. The idea is essential to removing an obstacle for those entities to feel comfortable reopening, Senate Majority Leader Mitch McConnell said at a news conference Tuesday.

“There is zero chance America can get back to normal without liability protection. And no bill will be put on the Senate floor that does not include it,” vowed McConnell, a Republican from Kentucky.

But Democrats strongly oppose the idea. Taking a different approach in the debate over how to reopen, they are pushing instead for greater federal regulations on employers, including colleges and universities, to protect workers from becoming infected by the virus -- despite opposition from Republicans that it would discourage employers from reopening businesses, as well as colleges.

At a news conference Wednesday, House Speaker Nancy Pelosi criticized the Republican stance. “Your employer, according to the Republicans, doesn’t have to care” about having to meet stricter Occupational Safety and Health Administration regulations, said Pelosi, a Democrat from California.

Congressman Bobby Scott, a Democrat from Virginia who chairs the House education and labor committee, added, “People are dying and OSHA has no enforceable standards. They have some little guidelines here and there, but it's not enforceable.”

Throughout the pandemic, Scott and other Democratic lawmakers have criticized the Trump administration for not creating regulations on employers to protect workers from becoming infected by the virus at work.

In their proposal for the next relief package, the HEROES Act, which was passed by the House in May, Democrats called for OSHA to create emergency coronavirus workplace regulations for all employers within a week of the bill’s passage.

Democrats, during the debate, have argued that while the Centers for Disease Control and Prevention has issued reopening guidelines, including those being used extensively by colleges and universities in developing their plans for the fall, they are not mandatory.

“OSHA, the agency that this nation has tasked to protect workers, has been largely invisible,” Congresswoman Alma Adams, a North Carolina Democrat who chairs the House worker protection subcommittee, said during a hearing on the agency’s response to the pandemic in May.

“Deep into this pandemic, OSHA has still not developed any enforceable standards for employers to follow that can protect workers from the airborne transmission of the novel coronavirus,” Adams said.

“The only logical conclusion I can draw is that OSHA’s inadequate response to this pandemic has been informed more by stale politics rather than modern science. The necessity to protect workers should not be cramped by stale ideological notions about regulation, nor campaign slogans about repealing two regulations for every new one that is created,” she said.

Spokespeople for Senate Republican leaders did not respond to inquiries Wednesday about the Democratic proposal.

Congressman Bradley Byrne, an Alabama representative and the top Republican on the subcommittee, said at the hearing that the Obama administration did not issue special regulations during other health crises like the Ebola outbreak, but instead enforced existing rules.

“We are still learning about the disease, and we just don't know enough information to meet the level necessary and appropriate to construct adequate emergency, temporary standards,” Byrne said.

Loren Sweatt, principal deputy assistant secretary of labor for occupational safety and health, also said at the workplace protection subcommittee hearing in May that creating easily changeable guidelines allows the agency’s advice to evolve as more is learned about the disease. The agency has been contacting employers when it gets complaints from workers about being put at risk of becoming infected. That leads to changes more quickly than creating new regulations, she said.

However, opposition to stronger regulations also stems from worries they would work against President Trump’s push for businesses, schools and colleges to reopen. More worker protection regulations, Byrne said at the hearing, “would be an unproductive burden for businesses already struggling to reopen.”

But Democrats like Senator Patty Murray, the top Democrat on education issues, argued Wednesday that it’s more important to pass worker protections than to protect employers from being sued.

“We’ve known that Republicans’ number one priority is to give corporations a ‘get out of jail free’ card and to prevent employers from being held accountable for keeping their workers, students and patients safe,” Murray said in a statement about the negotiations over the relief package.

“What we need to do is provide workers with the benefits and protections they deserve -- like expanded paid sick and family and medical leave, premium pay, an OSHA Emergency Temporary Standard, and robust unemployment insurance benefits,” she said.

American Federation of Teachers president Randi Weingarten said Wednesday night, "It’s immoral that six months into this pandemic, OSHA is still refusing to issue and enforce guidelines to protect the safety and health of faculty and students."

The American Council on Education, which has been lobbying for protection from lawsuits, saying it would encourage campuses to reopen, didn’t comment Wednesday about the proposal to create OSHA regulations. But on Wednesday, ACE president Ted Mitchell wrote congressional leaders urging protection from lawsuits, acknowledging it seems inevitable someone will get sick on campuses despite the institutions’ best efforts.

“As colleges and universities assess how quickly and completely campuses can resume full operations, they are facing enormous uncertainty about COVID-19-related standards of care and corresponding fears of huge transactional costs associated with defending against COVID-19 spread lawsuits,” Mitchell wrote.

It’s unclear, however, whether new OSHA regulations would affect what appears to be a main concern on campus: uncertainty over how testing for the virus will be done. The CDC has said that it does not recommend testing those who do not show symptoms for the virus. When someone does test positive, the CDC only recommends those who have been within six feet of them for 15 minutes be notified under contact tracing.

“There’s a lot of apprehension,” said Gary King, a Pennsylvania State University biobehavioral health professor, who said the university has not detailed to what extent it will test students during the term. “I hear it almost every day from younger and older colleagues.”

Like many, King is skeptical how well students will social distance or wear masks out of class.

“Many of the students are coming back in a joyous manner, and joyousness turns into carelessness,” he said.

Worsening the concerns, he said, is that a 21-year-old Penn State student died July 2 from complications from coronavirus.

The university in a statement said it is taking a number of steps to protect faculty members, including letting those who are immune-compromised, live with someone who is, or who have other special circumstances teach classes only online. The university also plans to announce its testing plans at a virtual town hall meeting today.

"By including an in-person component we can best serve the educational needs of our students, and most faculty who are able to have expressed strong interest in doing so for the benefit of students," the statement said.

At North Carolina State, Ullman, president of the Graduate Workers Union, said many who work at the campus would feel better if all students are tested, particularly as they return from other parts of the state and the country.

“What a lot of people want to see if students come back to campus is to show proof they are not infected,” she said. She was also concerned the university does not always plan to notify faculty if someone in their class tests positive for the virus during the term because of the CDC guidelines.

A spokesman for the system said the university is following CDC guidelines to only test those showing symptoms, in part because people can test negative for the virus one day only to get it the next.

Under existing state law, North Carolina employers have a duty to “furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious injury or serious physical harm to his employees,” which Shipman said would be the basis of any lawsuit. Still, he said, federal regulations would help.

Weingarten, though, said clear OSHA rules are needed to create requirements to protect workers, particularly because CDC guidelines are not mandatory. At the least, regulations would create protections for whistle-blowers and for workers raising concerns about conditions at work that put them in danger. While colleges are putting into place protections like requiring social distancing and requiring face masks when in contact with others, regulations would force the institutions to abide by their policies.

"While some states are stepping up, and colleges are putting into place protections such as social distancing and face masks, national regulations would force all institutions to abide by best practices," Weingarten said.

While OSHA hasn’t issued regulations, some states are moving to create their own. Virginia two weeks ago became the first state to issue workplace safety regulations specific to the pandemic, creating a range of requirements based on how much risk workers are under. It lays out a number of specific rules, including when employees who get the virus can return to work.

Micah Schwartz, a litigator at the firm McGuireWoods who represents universities in employment and workplace protection suits, said the Virginia law requires higher education institutions to meet at least the new state standards.

The creation of national OSHA regulations would likely include much of what colleges are already doing, and would likely add to their administrative work, he said. But it would also give employees a recourse if colleges aren’t following the rules.