Workplaces and Regulations During a Public Health Crisis

Liam Kenney
Associate Editor
Loyola University Chicago School of Law, JD 2021

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently announced alterations to its previous regulations which expanded family and medical leave provisions and paid sick leave of April’s Families First Coronavirus Response Act (“FFCRA”). These revisions serve to clarify the responsibilities of employers and the rights of workers as they relate to the paid leave of FFCRA. The changes come after a decision from the U.S. District Court for the Southern District of New York which invalidated portions of the initial regulations. The WHD’s revisions are an example of the lack of clarity and adequate response from regulations designed to protect workers during the current pandemic.

The United States Department of Labor has stated that the recent revisions will allow WHD to “enforce critical legal protections for millions of workers fully and fairly.” The action from the Department of Labor comes as the United States continues to struggle to minimize the impact and spread of COVID-19. Although there have been instances of federal action concerning workers during the pandemic such as the provisions from the WHD, many critics argue that such action has been too little and too late. Lives of many workers around the country have already been put in unnecessary danger for months. From the beginning, reports have documented how employees on the frontlines of the COVID-19 crises are often subject to unsafe conditions and are provided with insufficient protective equipment.

Late responses and lack of clarity

Major industries around the country have been hit hard with employees falling ill to COVID-19. For example, officials have linked 192 meat packing plants to over 15,000 cases of employee infections. After receiving numerous complaints from workers, health inspectors travelled to a plant in Champaign, Illinois and found employees working in cramped conditions with no barriers in place, a lack of masks, and crowded bathrooms. After the inspection, the plant implemented inadequate safety measures that lead to 87 employees testing positive for COVID-19 shortly after.

Similar responses that have failed to protect worker safety are not surprising as proper federal standards are non-existent or lacking in many industries. The Occupational Health and Safety Administration (“OSHA”) has failed thus far in creating enforceable guidelines related to the pandemic to ensure the safety of employees that must physically report to work during the crises. This has led to the patching-together of numerous state and local mandates designed to fill the holes in protection left by the lack of federal regulation. It has been tough for many employers to stay up to date with such orders as they are frequent and ever-changing. A tracker created by Bloomberg Law, concerning state and local coronavirus regulations, has found over 400 regulations that relate specifically to workplaces. This suggests the need for some uniformity across states. In the meantime, companies may have to expend more resources than normal to ensure compliance with such ever-changing regulations.

What can businesses do to ensure compliance and worker safety?

Employers should do their best to implement the measures put forth within their states and localities of operation. Though it may be difficult to keep track of all applicable regulations if a business operates nationwide for example. This struggle may be eased by ensuring a business’s workplace policies meet guidelines provided by the Center for Disease Control (“CDC”). This is important because many state and local mandates are based off of the CDC’s guidance.

Keeping an eye to possible changes in regulation on the federal level is also essential. There has been an absence of action on the federal level concerning new regulations throughout the pandemic, but it is possible that new mandates will arrive in the near future. For example, there has been a push to force OSHA to update its COVID-19 guidance for workplace safety from simple suggestions to regulations with the capabilities of full legal enforcement. The latest stimulus package passed by the House of Representatives includes language that would require OSHA to implement an emergency standard to enforce workplace safety measures concerning COVID-19. However, the Senate has not yet voted on the bill as Majority Leader Mitch McConnell holds out for protections for employers that might be sued for unsafe work conditions.

Because of this uncertainty on the federal level, companies should look to implement safety measures above and beyond current standards where possible. This can be done by utilizing the current guidance available from the CDC and local mandates and increasing the protections in ways that best suit the specific needs of employees and the workplace. That way, they are in the best position possible to implement any new requirements immediately, while protecting their workers in the meantime.