More than a dozen states have created enforceable safety protections for essential workers after federal authorities failed to guarantee their safety during the pandemic.
Yet at least twelve states have already passed laws or enacted executive orders designed to limit the liability of employers while other states have proposed similar rules, a review by the Midwest Center for Investigative Reporting found.
The main federal agency in charge of ensuring worker safety, the Occupational Safety and Health Administration, has been broadly criticized for only offering suggestions to protect workers from COVID-19 and for handing out paltry fines.
The agency has received tens of thousands of COVID-19 complaints, but, as of Dec. 11, has only fined 263 establishments, for a total of $3.5 million, according to OSHA.
For example, in September OSHA fined JBS’s Greeley, Colorado, plant, where hundreds of workers fell sick and six died, about $15,000.
Advocates complained that the fine was insignificant for a multi-billion dollar company.
“With this latest ‘so called fine,’ OSHA and the Department of Labor prove beyond a shadow of a doubt that they do not care about holding irresponsible corporations accountable for the lives lost or worker safety,” said the United Food and Commercial Workers International Union in an online statement.
In a letter to OSHA, U.S. Senators Elizabeth Warren and Cory Booker questioned the agency’s decision to classify violations as “serious” instead of “willful,” which would increase the fines to $134,937 per violation.
According to the agency’s Field Operations Manual, a violation can be classified as willful if “an employer knows that specific steps must be taken to address a hazard, but substitutes his or her judgment.”
With the limited oversight role OSHA has taken on, a couple of states have cracked down on serious offenders.
California OSHA cited Overhill Farms, a frozen food processing plant, for an outbreak of about 20 cases and one death. The state fined the company $103,780, with proposed penalties of $222,075, according to a state news release.
Oregon’s OSHA fined National Frozen Foods $2,000 after an April inspection showed the food processor failed to protect workers, according to a state news release.
Federal OSHA has also not devoted many resources to investigating worker complaints of retaliation by employers after reporting unsafe conditions.
According to an October report from the National Employment Law Project, 54% of all retaliation complaints filed to OSHA since the beginning of the pandemic were dismissed without investigations. Only 2% were investigated and resolved.
Some states, such as Colorado and Minnesota, have tried to address this issue by passing laws or issuing executive orders to protect workers from retaliation for raising safety concerns or refusing to work in unsafe conditions.
Below is a comprehensive list of the legislative and executive efforts each state has taken to protect workers and/or businesses.
State: Alabama
Protections for workers: N/A
Protections for businesses: The governor issued an executive order to protect businesses and grant immunity from civil liability for COVID-19-related claims.
State: Arizona
Protections for workers: N/A
Protections for businesses: According to the proposed new law, businesses will not be liable “to a person who contracts COVID-19 during the state of emergency or before April 1, 2021,” which includes “after entering and remaining on the premises of the business,” unless the business “acted with gross negligence.”
State: Arkansas
Protections for workers: N/A
Protections for businesses: The governor issued an executive order to protect businesses and grant immunity from civil liability for COVID-19-related claims.
State: California
Protections for workers: The state enacted a strict 21-page emergency standard covering social distancing and face mask requirements, COVID-19 reporting and investigations, risk evaluations, and testing.
Additionally, the state mandates that employers report all injuries and illnesses, including those related to COVID-19, and legislators in the state passed a law requiring employers to notify workers of potential outbreaks.
The law also includes citations for serious violations related to the virus and allows state regulators to “shut down an entire worksite” if employees are exposed to “an imminent hazard related to COVID-19.”
Protections for businesses: N/A
State: Colorado
Protections for workers: The state legislature passed a law protecting workers who raise safety concerns from employer retaliation.
Protections for businesses: N/A
State: Georgia
Protections for workers: N/A
Protections for businesses: According to the Georgia COVID-19 Pandemic Business Safety Act, no entity “shall be held liable for damages in an action involving a COVID-19 liability claim” unless “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm” is proven.
State: Illinois
Protections for workers: According to an executive order signed in April and updated in May, all businesses, retail stores and manufacturers must ensure that employees practice social distancing and provide face coverings when social distancing is not possible.
Additionally, the Illinois Department of Public Health released a guidance document for food and meatpacking facilities stating that a workstation should be “thoroughly cleaned and disinfected” as soon as a worker has been diagnosed with COVID-19 and the worker should isolate at home for 10 days, without requiring a note from a health care provider.
But even as the state rolls out these safety measures, it is unclear how they will be enforced given that Illinois’ OSHA cannot issue fines to private companies.
Protections for businesses: If passed, the COVID-19 Immunity Act, currently in the state’s senate, will grant businesses with immunity from liability “for any civil damages for any acts or omissions that result in the transmission of COVID-19.”
State: Iowa
Protections for workers: N/A
Protections for businesses: The state’s senate passed a law stating that “a person shall not bring or maintain a civil action alleging exposure or potential exposure to COVID-19” unless it “involves an act that was intended to harm” or “constitutes actual malice.”
State: Kansas
Protections for workers: N/A
Protections for businesses: The state legislature passed a bill providing businesses with “immunity from civil liability,” as long as they were “acting pursuant to and in substantial compliance with public health directives.”
State: Kentucky
Protections for workers: The governor issued an executive order to provide “a limited period of temporary total disability benefits for those workers who are removed from work by a physician for a period of self-quarantine as a result of occupational exposure to COVID-19.”
Protections for businesses: N/A
State: Louisiana
Protections for workers: N/A
Protections for businesses: The state legislature passed a bill providing businesses with “immunity from civil liability,” unless they “failed to substantially comply with the applicable COVID-19 procedures.”
State: Massachusetts
Protections for workers: According to the Workplace Safety Measures standards document issued by the state’s Department of Labor Standards, businesses with in-person operations “must immediately adopt and maintain” the applicable safety rules, which include ensuring social distancing, providing hand-washing capabilities and regular sanitization, and that employees “who are displaying COVID-19-like symptoms do not report to work.”
Protections for businesses: The state’s legislature proposed a law to protect only essential businesses “from suit and civil liability for any damages alleged to have been sustained as a result of alleged exposure to the 2019 novel coronavirus on the premises of such essential business or due to the operations of such essential business,” as long as “the essential business is providing its services in good faith.”
State: Michigan
Protections for workers: The Department of Labor and Economic Opportunity issued rules “to control, prevent and mitigate the spread of coronavirus.” These include requiring sick workers not to report to work, increasing facility cleaning, ensuring social distancing and requiring face coverings when social distancing is not possible.
Protections for businesses: The state’s legislature passed a law, which the governor signed into law, to grant businesses immunity from liability for COVID-19 claims, as long as they act “in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.”
State: Minnesota
Protections for workers: The governor issued an executive order protecting workers from retaliation for raising safety concerns as well as stating the right to “good faith refusal to perform assigned tasks if the worker has asked the employer to correct the hazardous conditions but they remain uncorrected.” The executive order covers “all workers regardless of immigration status.”
Protections for businesses: N/A
State: Mississippi
Protections for workers: N/A
Protections for businesses: Any entity in the state that “attempts in good faith to follow applicable public health guidance shall be immune from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19,” according to the Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act.
State: Nevada
Protections for workers: According to the governor’s emergency order, all employers “must take proactive measures to ensure compliance with the social distancing and sanitation guidelines” and “shall require employees who interact with the public to wear face coverings, to the maximum extent possible.” The state’s OSHA is in charge of enforcing violations of the order’s guidance and regulation.
Protections for businesses: N/A
State: New Jersey
Protections for workers: The governor issued an executive order in April, which has been revised at least 7 times, requiring employers to ensure social distancing and face masks, and provide employees with sanitization materials.
Protections for businesses: The state legislature proposed a new law that would give “immunity to businesses against claims for damage to individuals arising out of exposure to the COVID-19 at premises owned or operated by the employer.”
State: New York
Protections for workers: The governor issued an order guaranteeing paid leave for workers who have to quarantine themselves or have to care for a family member in serious condition. Workers can also file a complaint with the state’s Department of Labor if their employer “does not provide the required paid leave.”
Protections for businesses: According to a proposed new law, currently in the state’s senate, businesses would not be “liable in any civil action for the spread or possible transmission of COVID-19 caused by an act or omission,” as long as the company was “acting in good faith in the workplace.”
State: North Carolina
Protections for workers: N/A
Protections for businesses: The state enacted a law that includes provisions for limited immunity from liability for essential businesses and operations. According to the Governor’s Executive Order of March 27, that includes healthcare, infrastructure, agriculture, restaurants, grocery, and a host of other industries and retail operations.
According to this provision, businesses are immune from “claims from any customer or employee for any injuries or death alleged to have been caused as a result of the customer or employee contracting COVID-19 while doing business with or while employed by the essential business.”
State: Ohio
Protections for workers: N/A
Protections for businesses: The state enacted a law stating that no COVID-19-related civil action can be brought against a person or company, “unless it is established” that this was caused “by reckless conduct or intentional misconduct or willful or wanton misconduct.”
State: Oklahoma
Protections for workers: N/A
Protections for businesses: According to a new law, companies “shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19” as long as they were “in compliance with federal or state regulations.”
State: Oregon
Protections for workers: Employers are required to provide face coverings at no cost, ensure physical distancing, a clean and sanitized workplace, and report all infections to the state’s OSHA as well as notify workers when someone in their workplace has contracted the virus, according to the state’s new temporary rule.
Protections for businesses: N/A
State: Pennsylvania
Protections for workers: According to an executive order issued by the governor back in April, employers must limit persons in common areas to ensure social distancing, provide masks for all employees and make it mandatory to wear them, implement temperature screening, and promptly notify employees of potential exposure to the virus.
Additionally, the city of Philadelphia passed protective measures that include penalties for employers that retaliate against workers “for refusing to work in unsafe conditions.”
Protections for businesses: N/A
State: Rhode Island
Protections for workers: Businesses must make available their written COVID-19 Control Plan to the Rhode Island Department of Health. In it they must explain how they will prevent the spread of the virus.
Protections for businesses: N/A
State: South Carolina
Protections for workers: N/A
Protections for businesses: The senate and house are currently working on separate bills that may include immunity protection for “grocery and hardware stores, pharmacies, banks, takeout eateries, and other businesses deemed essential.”
State: Utah
Protections for workers: N/A
Protections for businesses: Virtually every business “is immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19,” according to the COVID-19 Provisions law.
State: Virginia
Protections for workers: According to the Emergency Temporary Standard, employers “shall not permit employees or other persons known or suspected to be infected with SARS-CoV-2 virus to report to or remain at the work site.” They must also ensure social distancing and “compliance with respiratory protection and personal protective equipment standards.”
Protections for businesses: N/A
State: Washington
Protections for workers: According to the governor’s farmworker protection mandate, agricultural employers must provide personal protective equipment at no cost to employees, ensure physical distancing and regular disinfection “prior to the start of the workday, and before and after the morning, lunch and afternoon breaks.”
Additionally, the state’s OSHA issued an enforcement policy for evaluating workplace safety, which states that employers must educate workers about the virus and how to prevent its spread, ensure a minimum 6-feet distancing, provide PPE and maintain a cleaning schedule.
Protections for businesses: N/A
State: Wyoming
Protections for workers: N/A
Protections for businesses: Any business that acts in “good faith” in the state has immunity from liability, unless there is evidence of “gross negligence or willful or wanton misconduct,” according to the state’s immunity from liability provision.
Republish our articles for free, online or in print.
