The level of workplace-safety measures in place during the next public health emergency in North Carolina may be an employer-driven decision, rather than an across-the-board mandate from a federal or state government entity.
That scenario became more of a reality following the recent decision by state Labor Commissioner Josh Dobson to deny petitions submitted on Dec. 14 by a coalition of left-leaning civic and worker advocate groups.
The petitions recommended instituting rules addressing potential infectious diseases exposures in the agricultural, construction and general industry sectors, along with migrant housing.
Dobson, a Republican who chose not to seek election to a second term, did not say in his statement why he declined to adopt the recommended rules.
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“This decision comes after carefully reviewing the rulemaking petitions, the record, public comments, listening to both sides, and considering the N.C. Department of Labor’s statutory authority,” Dobson said.
The Dobson decision was expected given that in November 2021 he objected to the Biden administration’s employer vaccination mandate, calling it “is the wrong approach.”
It would have mandated that employers enforce specified health requirements if the governor, legislature or federal health agencies declared a public-health emergency. Employers would be required to tailor the plans to their worksites’ needs and consider protections related to social distancing, ventilation, cleaning and symptom screening.
Masking and social distancing, as well as tracking COVID-19 exposure rates, have been credited with saving lives and allowing businesses to slowly reopen after the early months of the pandemic.
In terms of migrant housing, the petition would have required providing masks and hygiene supplies to those using shared housing and vehicles, expanding or rearranging sleeping quarters, and improving ventilation in shared spaces.
Most of those steps were implemented via executive orders from Gov. Roy Cooper shortly after the COVID-19 pandemic erupted in North Carolina in mid-March 2020. Cooper allowed his public-health emergency executive order to expire on Aug. 15, 2022.
The federal Occupational Safety and Health Administration’s Emergency Temporary Standard required all employers with 100 or more workers to mandate COVID-19 vaccines or weekly testing for employees by Jan. 4, 2022.
Pro, con reactions
Dobson’s response drew criticism from the petitioners that included the Episcopal Farmworker Ministry, N.C. State AFL-CIO, Union of Southern Service Workers, the Hispanic Liaison of Chatham County/El Vinculo Hispano, the N.C. NAACP State Conference, and the Western N.C. Workers’ Center.
“We are deeply disappointed in the N.C. Department of Labor’s decision not to adopt the proposed airborne infectious disease rules,” NC State AFL-CIO president MaryBe McMillan said.
“Too many workers died during the COVID-19 pandemic. We need rules to protect workers from future outbreaks and pandemics.”
McMillan pointed out that during the pandemic, “we relied on farm workers, grocery clerks, nurses, letter carriers and so many other essential workers to provide critical goods and services.”
“We cannot call workers ‘essential’ and continue to treat them as expendable. We urge the Department to reconsider this decision.”
Meanwhile, Dobson’s decision drew praise from fellow Republicans, including Luke Farley, who won the 2024 GOP primary for Labor commissioner over Rep. Jon Hardister, R-Guilford. Hardister also stated his opposition to the petitions during the primary campaign.
Farley’s campaign messages, particularly on his Facebook page, demonstrates his clear opposition to COVID-19 vaccine workplace mandates.
“The COVID tyranny is back, folks,” Farley wrote. “The current N.C. Labor Department is considering NEW mandates.
“Didn’t we learn anything from big government’s first shutdown of our schools and businesses? This proposal would be a disaster for our economy and students.
“No one should be required to take an experimental vaccine just to go to work — that’s not safety, that’s tyranny. As Labor commissioner, I’ll stand up for workers’ medical freedom.”
Senate leader Phil Berger, R-Rockingham, has said he “believes that private employers should be free to make their own decisions on what (employee vaccination) policies are best for their companies.”
Four years of COVID-19
The six Republicans on the 10-member Council of State, including Dobson, butted heads frequently with Cooper over his public-health emergency executive orders and pushed for them to expire much sooner than Cooper wanted.
Some of Cooper’s pandemic-related waivers were extended up to 14 times.
Cooper said extensions had the same reasoning behind them — providing flexibility for health care workers and care facilities, as well as easier access to vaccines, tests and treatments.
Cooper said he would go along with the Republican-controlled legislature passing laws addressing the statewide pandemic emergency order as long as it provides the flexibility needed to act quickly if necessary.
When the public-health emergency executive order expired, there had been nearly 3.05 million confirmed COVID-19 cases in North Carolina, as well as 27,524 COVID-19 related deaths.
Forsyth has had 107,247 confirmed cases and 860 COVID-19 related deaths at that time.
The combination of individuals getting one to multiple COVID-19 vaccine boosters, along with herd immunity, appears to have converted COVID-19 into an infectious respiratory virus along the lines of influenza.
However, concerns remain about how quickly and thoroughly will the next response be to the next major respiratory virus outbreak, thus the advocate groups’ desire to have preparations and responses settled upon and in place.
When asked Dobson’s denial of the two petitions, the N.C. Department of Health and Human Services did not specifically address his decision by saying “we are in a different place with COVID-19 than we were during the pandemic.”
“A high percentage of the population has some protective immunity against COVID-19 and we have the tools — including vaccination, testing and treatment — to manage COVID-19, as we do for other common respiratory illnesses.”
Legislative actions, inactions
The Republican-controlled General Assembly acted in June 2020 to provide $10 million in federal CARES Act funding to meat-processing facilities within a COVID-19-focused bill.
The bipartisan support for House Bill 1023 allowed those plants to add production capacity and equipment, and help market their products.
The impetus behind the meat-processing grant legislation is that the pandemic, which “has resulted in serious and substantial impacts on the food supply chain,” in particular on small- to medium-sized livestock producers.
The overwhelming support, however, came after an amendment failed 57-57 that would have required facilities receiving grant funds to provide employees with face masks, hand sanitizer, gloves and a 15-minute break every two hours for hand cleaning. A bill or amendment vote that ends in a tie is considered as failing.
With the failure of the amendment, there was no specific plant- and worker-safety condition legislation even after several outbreaks at meat-processing facilities in the state, including at least 570 Tyson Foods workers testing positive at the company’s Wilkesboro facilities.
In August 2021, Tyson became one of the largest U.S. corporate employers to require workers to make full COVID-19 vaccination a condition of employment.
Another amendment was approved initially for HB1201 that required grant applicants to submit a plan for protecting employees from COVID-19, but it didn’t make the final version.
In August 2021, a group of 55 state House Republicans plunged into the controversial employee vaccine mandate decisions by six health-care systems by asking them to reconsider their decisions.
The six systems were Atrium Health, Cone Health, Duke University Health System, Novant Health Inc., UNC Hospitals and Wake Forest Baptist Medical Center. Cape Fear Valley Health, Vidant Health and WakeMed also announced mandatory vaccinations for employees.
“We continue to hear from countless constituents who work at your facilities that feel blindside by this announcement,” the legislators wrote.
“We believe the rush for North Carolina’s largest health systems to ‘be first in the state to require COVID vaccination for their employees’ is unwise and unfair.”
Meanwhile, Cone chief executive Dr. Mary Jo Cagle said that “the overwhelming majority of employees and our patients support our vaccination requirement.”
No lessons learned?
Andy Ellen, president and general counsel for the N.C. Retail Merchants Association, said to the Carolina Journal that the advocacy group strongly opposes the petitions.
“While we recognize the difficult position Commissioner Dobson and the department are bound by the courts to move forward with the rulemaking process, these rules will harm businesses of all sizes without any real positive outcomes,” Ellen said.
“These rules will be expensive and onerous and disregard the voluntary safety methods already implemented by businesses that specifically suit their establishment.”
The Dobson decision provides “more evidence that policymakers from both parties and at every level of government simply refuse to learn any lessons from the ongoing COVID-19 pandemic,” said John Quinterno, principal with South by North Strategies Ltd., a Chapel Hill research company specializing in economic and social policy.
“Commissioner Dobson’s statement implies a false zero-sum logic: we can have workplace safety or economic prosperity, but not both. In regard to COVID, workplace safety actually can enhance economic prosperity.”
Quinterno said opponents to the petitions “simply want to pretend that the pandemic doesn’t exist and deny that there are any common or public steps that can be taken to mitigate the current virus or any future pandemic-type disease that may emerge.”
“If and when the next pandemic comes along, workplaces will find themselves back in the same situation that troubled them earlier in this pandemic.
“Working people will find themselves being asked to bear unreasonable risks that can contribute to needless death and disability.”
Quinterno also cited what is considers as the short-sightedness of the Biden administration to not move forward with a general workplace infectious diseases standard, but rather advancing a more limited rule that only applied to healthcare settings.
“This was a major missed opportunity,” Quinterno said.
“Unfortunately, the Biden administration has continued to minimize the seriousness of COVID, misrepresent the science, and downplay the need for any collective mitigation methods in favor of individualized responses.
“Against this backdrop, it is unsurprising that state governments are unwilling to adopt more stringent requirements on their own, before even considering partisan control of the specific statewide offices,” Quinterno said. “This very much reflects a bipartisan consensus.”