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Editorial


Front Page - Friday, October 9, 2020

Is your workplace a COVID-19 risk?


Don’t look to State of Tennessee for help



Since the coronavirus pandemic first surfaced in Tennessee in March, monthly worker complaints to occupational safety and health regulators have more than doubled, with 1,000 complaints so far showing a possible connection to COVID-19.

Safety officials say they will look into the complaints, but Tennessee has no specific workplace safety standard that cover community-transmitted illnesses such as the common cold, influenza and, now, COVID-19.

And the Tennessee Occupational Safety and Health Administration (TOSHA) says it can’t take action against an employer unless the complaint falls within one of its standards, a spokesman says.

Moreover, Tennessee hasn’t issued mandates for what businesses must do to operate safely during the pandemic. Instead, the Volunteer State has taken a voluntary approach.

The state recommends, but doesn’t require, employers to follow industry-specific guidelines in a plan called the “Tennessee Pledge,” developed by a task force of state Cabinet members, legislators and business leaders appointed by Gov. Bill Lee.

The governor, through executive orders, has authorized local governments to require residents to wear face masks through Oct. 30. The executive order also says employers can’t require or allow employees with COVID-19 to work.

By statute, the six counties in the state that run their own health departments – Davidson, Knox, Hamilton, Shelby, Jackson and Sullivan – have set their own COVID-19 health policies throughout the pandemic. Public health departments in the other 89 counties are run by the state, which recently removed restrictions on businesses and gathering sizes.

In the months since COVID-19 struck, many Tennesseans willingly wear face masks, maintain safe distances from others and take other voluntary steps to prevent the spread of COVID-19, a new and highly contagious viral disease. The decentralized, voluntary response to the disease, however, has brought challenges.

“It’s a difficult balance, and the frustration for employers is that the guidance is constantly changing,” says Martha Boyd, an attorney with the Baker Donelson law firm who represents employers. She tells clients the government isn’t trying to make their jobs more difficult, but that guidance changes as more is learned about COVID-19.

Billy Dycus, president of the Tennessee AFL-CIO Labor Council, says one large manufacturer first started taking worker temperatures as a precaution against COVID-19. When some started to catch COVID-19, the employer required employees to wear face masks as soon as they got out of their cars in the parking lot.

People pushed back, Dycus says, so the company relented. Employees would wear masks on-site if they couldn’t stay 6 feet apart.

“The entire inconsistency of it all is really what’s made it hard for people,” he says. “Nobody wants to be told what to do; that’s just what we are as a country.”

TOSHA had been receiving about 125 complaints per month on average, but it now receives about 300, says Wendy Fisher, the assistant commissioner of the Tennessee Department of Labor and Workforce Development who directs TOSHA.

Many of these complaints come from employees in health care, warehouse work and, more recently, from teachers, she adds.

The complaints partially reflect detailed information on 49 COVID-19 cluster sites in Nashville that the Metro Health Department recently provided to the media.

The largest cluster, with 280 COVID-19 cases, occurred at Tyson Foods’ meatpacking facility, which the health department classified as a “commercial-warehouse.” The next-largest eight clusters occurred in places where many people are housed together, such as correctional facilities, group housing for homeless people and long-term health care facilities.

Other clusters have occurred at bars, construction sites and social gatherings.

No schools were on the list. While Metro students take their classes online, some public schools in other counties are allowing students back into the classroom at their parents’ discretion.

“Teachers are overwhelmed with concern about their physical safety and that of their students and colleagues, plus (about their) workload,” explains Beth Brown, president of the Tennessee Education Association, which represents the state’s public-school classroom teachers.

Three Midstate teachers say that their districts’ decision to require consistent use of face masks has made the difference for educators who might have been on the fence about returning to the classroom this school year.

“I have friends who are immune compromised who are here (working at school),” one teacher says. A mask mandate in her district has helped teachers feel safe enough to return to school and teach.

“I love my job,” she adds. “I can’t possibly feel safe and function at that level of stress” if her county doesn’t require students to wear face masks.

“Nobody enjoys wearing masks,” another teacher says, “but if it means I can stay healthy and have school in person, I’m going to do it. That’s where the kids are at, too.”

Most teachers are relieved to be back in school, she notes, even though many are working more than ever to prepare for both in-person and online classes.

One teacher talked about preparing course materials for parents to pick up for their children to work on the following week at home. The teacher also teaches some students in person, and there are few enough children to allow plenty of distance between their desks.

The hybrid model – some children at school, some learning remotely at home – increases teachers’ workloads, sometimes substantially, teachers say, because online and in-person teaching are so different. “There is a growing sense of frustration and exhaustion,” Brown points out.

The three classroom teachers say their districts are working hard to assure the safety of teachers, staff and students, and the teachers realize there’s probably no ideal way to address COVID-19.

That’s much the same story from people in private business.

Jim Brown, Tennessee director of the National Federation of Independent Business, says his organization worked with the Lee administration on the Tennessee Pledge. He says that the vast majority of businesses are following it, citing his observations in the field.

Businesses want both customers and employees “to come in and feel safe,” he says. He points to employees wearing face masks in supermarkets where owners have added partitions around cash registers and made other modifications to stores.

“We’ve all been reminded that actions have consequences,” he explains, adding that businesses are taking coronavirus “very seriously.”

One NFIB member, Brigitte Edwards, co-owns four Nashville Orangetheory fitness studios with her husband. The studios are franchises and must follow corporate COVID-19 safety requirements as well as Metro Nashville health rules. The studios were closed altogether from mid-March to June 1.

Orangetheory isn’t a big-box gym, but a 3,000-square-foot facility with fitness classes taught by instructors who guide members through their workouts, Edwards says. Before COVID-19, the studios could accommodate up to 44 people. These days, no more than 14 can be in a class and members must stay 10 feet apart.

Edwards says she doesn’t expect classes to get bigger until there’s a vaccine for COVID-19 or the pandemic ends.

Edwards says the business has spent about $3,000 per month per location for personal protective equipment, cleaning equipment and supplies. “We’re doing everything we can so (people stay healthy).”

The evolving story of COVID-related workplace safety is taking place largely within a program that dates back to 1970, when Congress passed legislation that created the Occupational Safety and Health Administration.

The agency itself emerged the following year.

OSHA runs occupational safety programs in 24 states and the District of Columbia, and directs 26 other states, including Tennessee, that run their own programs. State programs must provide their workers with at least the same protections as the federal OSHA program, and they can choose to provide greater protections.

Tennessee did just that with its hazard communication standard, which took effect in the 1980s, says Fran Ansley, a retired University of Tennessee law professor and co-author of reports on workplace fatalities in Tennessee. The federal government later adopted its own hazard communication standard to provide information that has helped both workers and first responders such as firefighters.

“Everyone in society has an interest in safe workplaces,” Ansley says.

She adds worker complaints help drive OSHA and state worker safety programs, and regulators rely on employees to alert them to problems. If workers are afraid of losing their jobs, especially if the economy is bad, they’re less likely to complain, she adds, and immigrant workers often won’t speak up because they fear enforcement from immigration authorities.

“All of these problems predate COVID,” Ansley says. “Now we have COVID. OSHA has never adopted an infectious disease standard,” so workplace safety inspectors have no training or checklists to guide them in this area as they have where other standards exist. “It should have happened long ago.”

Tennessee’s workplace safety program budget and staffing have been flat in recent years. Tennessee’s worker population has risen from about 2.7 million in 2015-16 to just under 2.9 million in 2018-19, and the number of employers has risen as well.

TOSHA’s budget has risen from just under $9.7 million in the 2014-15 fiscal year to about $10.3 million in fiscal 2018-19, according to the state Labor Department’s annual report. That’s anywhere from 4.3% to 5.1% of the department’s annual budget.

TOSHA staffing has remained stable over the years, although the actual count can vary depending on retirements and turnover. As of early September, 92 positions were budgeted for TOSHA, with 82 filled.

When someone makes a COVID-related complaint to TOSHA, the agency typically will get in touch if the person has given contact information, Labor Department spokesman Chris Cannon says.

TOSHA doesn’t extend to people’s homes, where many people now work because of the pandemic.

“TOSHA cannot take any action against the employer unless the complaint item is covered by one of the workplace standards within TOSHA’s jurisdiction,” Cannon explains. “TOSHA also sends the employer a letter informing them an employee expressed concern about continued operations. The letter reiterates Centers for Disease Control and Prevention recommendations to wash hands, practice cough/sneeze discipline, and maintain distance between employees as the workplace allows.

“This process does not result in an on-site inspection or citations.”

The state’s workers’ compensation program, which covers workplace injuries and illnesses and operates independently from TOSHA, also is part of the Department of Labor. From March 1 through Sept. 13, state workers’ compensation insurers received 2,614 first reports of injury related to COVID-19. So far, 1,202 claims have been rejected. These decisions may be appealed and overturned, so rejections aren’t final.

TOSHA staff follow the Tennessee Pledge, especially when they need to go into the field and visit workplaces, says Wendy Fisher, the assistant commissioner of labor. Most of TOSHA’s compliance staff are working from home.

Staff continue to inspect workplaces and try to do as much preparation as possible remotely before going on-site. They wear face masks, maintain social distance, use hand sanitizer, refrain from shaking hands and limit the number of people in meetings, she says.

The Lee administration says the Tennessee Pledge works well.

“Much of our state’s current success in this fight is because Tennesseans naturally choose to put each other first and voluntarily adopt safe, new habits,” the Pledge document states. “It’s that volunteer spirit that’s been fighting this pandemic, and it’s the same volunteer spirit that will rebuild our economy.”

Edwards says her business has chosen to implement safety measures voluntarily, adhere to Metro Health Department requirements and follow corporate anti-COVID-19 procedures. The measures “make our customers feel safe; it makes them continue to work out with us so we feel like the voluntary measures work. It really benefits us anyway.”

“No employers that I have worked with have been blasé or cavalier,” employment attorney Boyd says. “They don’t want their folks to be sick; they don’t want to lose anyone. No one wants to inflict this on anyone.”