Still No National COVID Safety Standard

Recently, following a disappointing April jobs report and harsh criticism from Republicans, Joe Biden told reporters that his administration was “going to make it clear that anyone collecting unemployment who is offered a suitable job must take the job or lose their unemployment benefits.”

“There are a few COVID-19-related exceptions so that people aren’t forced to choose between their basic safety and a paycheck, but, otherwise, that’s the law,” the president said. White House press secretary Jen Psaki similarly noted recently that workers on unemployment are “only allowed to refuse work and continue to receive benefits if you’re sick with COVID, taking care of someone sick with COVID, or offered a job at an unsafe workplace.”

One of Biden’s first moves as president was taking executive action to “ensure that unemployed Americans no longer have to choose between paying their bills and keeping themselves and their families safe from COVID-19 by asking the U.S. Department of Labor to consider clarifying that workers who refuse unsafe working conditions can still receive unemployment insurance.”

Early on in the pandemic, Congress had authorized states to relax their qualifications for jobless benefits, but not every state did so. Biden’s new order sought to provide protections in even states that had not.

In late February, the Labor Department followed through, releasing guidance allowing workers to receive pandemic unemployment benefits if they refused a job in a workplace that is “not in compliance with local, state, or national health and safety standards directly related to COVID-19.”

Under the Trump administration, however, there were no enforceable national standards related to workplace COVID-19 precautions. OSHA issued limited guidance on the matter — something candidate Biden made a point of blasting on the campaign trail.

At an April 2020 virtual town hall with frontline workers, Biden called for OSHA to develop “emergency temporary standards” (ETS), calling it “the first, most important thing we should be doing because you should not have to go into work tomorrow or whenever you go back and have to worry whether or not you’re standing too close to someone; whether or not there’s no protective masks you have; whether or not, there’s a whole range of things.”

He added, “The employer should be forced, as a matter of law, to provide for your protection.”

The day after his inauguration, Biden ordered OSHA to develop the emergency standards for workplaces by mid-March. However, more than four months later, those standards have yet to appear.

On Wednesday, a hundred Democratic lawmakers called on the president to issue an emergency standard and ensure that “employers provide the comprehensive protections [workers] need, including ventilation, respiratory protection, testing and screening, exposure notification, and on-site vaccinations.”

Behind the scenes, corporate America has been fighting to delay the new rules, which are being reviewed by the Office of Information and Regulatory Affairs (OIRA).

As of last month, OIRA had scheduled more than two dozen meetings with business groups. As Roll Call reported, “Business lobbying groups meeting with OIRA include the U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, Retail Industry Leaders Association, National Association of Home Builders and the North American Meat Institute. OIRA also scheduled meetings with several unions, including the AFL-CIO, the North America’s Building Trades Unions, United Food and Commercial Workers International Union and National Nurses United.”

Meanwhile, Biden’s executive order to protect workers who felt unsafe was limited. Steven Gray, NELP’s senior counsel on its Social Insurance Team, notes that while the initial burden is on the employer to show that the work offer was legitimate, responsibility shifts to the worker to prove they were justified in refusing the work.

“The employer first has to show that you refused the offer and that it was a legitimate offer — it’s their burden to show that — and then the burden switches to the worker to prove either that the work wasn’t suitable or that they had good cause for refusing,” he says.

Moreover, says Gray, general concern over getting sick at a workplace is not enough under the order to justify refusing to work. Gray’s colleague Berkowitz explains that Biden’s order was aimed at people who are already unemployed who received an offer to return to unsafe work environments. But the directive did little to protect workers who may want to quit their jobs over safety concerns.

“Worker safety rights are incredibly weak,” she concludes.

At the time the Biden Labor guidance went out, workers could at least point to CDC guidelines around masking and social distancing in order to demonstrate that their workplace was unsafe — but those guidelines have since been relaxed significantly.

Ending the Mask Mandate

The CDC recently issued a new guidance stating that vaccinated people do not have to wear masks in most situations — including indoors — stripping workers of even the weak federal protection they had.

The new rules also make it difficult for OSHA to justify releasing the emergency standards the agency has been developing, since the Occupational Safety and Health Act requires the federal workplace safety agency to give “due regard” to the CDC, as well as show that COVID presents a “grave danger” to workers. The CDC now says the risk to vaccinated Americans is minimal.

Although CDC director Rochelle Walensky subsequently cautioned that the new guidance was not “permission for widespread removal of masks” and that “these decisions have to be made at the jurisdictional level, at the community level,” for many, the news signaled an end to the the COVID-19 pandemic.

Many states have already relaxed mask requirements, if they ever had them, and are ending enhanced unemployment. So far, twenty-three states have announced they are ending their pandemic unemployment assistance — although Senator Bernie Sanders and NELP have been petitioning Labor Secretary Marty Walsh, arguing he has the legal authority to intervene and guarantee benefits for self-employed, gig, and other workers.

At the same time, many businesses are dropping mask requirements. Following the CDC announcement, Target, Home Depot, Best Buy, Macy’s, and CVS changed their mask policy.

The news from CDC was met with backlash from organized labor. National Nurses United (NNU) and the California Nurses Association (CNU) condemned the relaxed guidelines as unscientific and dangerous, arguing they put workers at risk.

“Now is not the time to relax protective measures, and we are outraged that the CDC has done just that while we are still in the midst of the deadliest pandemic in a century,” said NNU executive director Bonnie Castillo.

The United Food and Commercial Workers Union (UFCW) also warned that the guidelines put retail workers in danger, because there is no way of knowing who is vaccinated and who is not. UFCW president Marc Perrone released a statement asking if essential workers were “now supposed to become the vaccination police.”

Democratic lawmakers recently warned that the “new guidelines may put frontline workers across the country at further risk of illness and death while no OSHA ETS is in place.”

There is currently no national vaccine passport and less than 40 percent of all Americans are fully vaccinated. Employers may, but do not have to, require vaccinations for their employees. It remains to be seen if employers will limit mask-wearing to those workers who request — and are granted — special accommodations.

All signs indicate that there will be little help coming from the Biden administration beyond a continued push to vaccinate the population. But even then, the administration cannot seem to get out of its own way. Vaccination efforts have been hindered by another broken promise by the president.

In April, Biden announced a tax credit for employers to provide paid sick leave. But the announcement did not result in widespread implementation of paid leave. Today, half of Americans who have not received their vaccines cite fear of missing work as a reason why.

“The Biden administration has failed frontline workers,” said social epidemiologist Justin Feldman, PhD, a health and human rights fellow at Harvard’s FXB Center for Health and Human Rights. “Its policies have likely contributed to tens of thousands of deaths, largely among lower-income people of color. He can, and should, still act because Covid-19 is not going away, it’s likely to reemerge at higher levels this coming winter.”

Indeed, it has become increasingly clear that the federal pandemic response framework developed under the Trump administration — where rules and regulations are left up to the states, and the White House bets everything on vaccines — has not fundamentally changed.

Following the CDC announcement, OSHA updated its website advising workers and employers to follow the CDC’s guidelines.

“OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly,” it read. “Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.”