Next Showdown in Congress: Protecting Workers vs. Protecting Employers in the Pandemic

By Christina Jewett and Melissa Bailey of Kaiser Health News. Originally published at Kaiser Health News

Congressional leaders are squaring off over the next pandemic relief bill in a debate over whom Congress should step up to protect: front-line workers seeking more safeguards from the ravages of COVID-19 or beleaguered employers seeking relief from lawsuits.

Democrats want to enact an emergency standard meant to bolster access to protective gear for health care and other workers and to bar employers from retaliating against them for airing safety concerns.

Republicans seek immunity for employers from lawsuits related to the pandemic, an effort they say would give businesses the confidence to return to normal. The Senate is scheduled to reconvene later this month.

The debate reflects a deepening schism between the major political parties, with Democrats focused on protecting lives and Republicans focused on protecting livelihoods.

Democratic House Speaker Nancy Pelosi expressed frustration over efforts to pass an emergency worker-protection standard, which keeps running into GOP resistance.

“They’re saying ‘Let’s give immunity — no liability — for employers,’” Pelosi said. “We’re saying the best protection for the employer is to protect the workers.”

Nearly 98,000 health care workers have contracted the novel coronavirus, according to Centers for Disease Control and Prevention data that the agency acknowledges is an undercount. KHN and The Guardian have identified more than 780 who have died and have told the personal stories of 139 of them.

In May, the House passed a $3 trillion relief bill that would require the Occupational Safety and Health Administration to put in place an emergency standard that would call on employers to create a plan based, in part, on CDC or OSHA guidance to protect workers from COVID-19.

It would cover health care workers and also those “at occupational risk of exposure to COVID19.” The measure would allow workers to bring protective gear “if not provided by the employer.” Similar rules in place in California health care workers have come under fire for offering little added protection.

In action, the new measure would allow OSHA inspectors to request to review an employers’ plan and hold them accountable for following it, said David Michaels, former U.S. assistant secretary of Labor and OSHA administrator, who has called for such a standard. Federal guidance is currently optional, not required.

“Many employers want to be law-abiding,” Michaels said, “and they know they risk enforcement and possibly a monetary fine if they don’t attempt to do this.”

Top Democrats, including presumptive presidential nominee Joe Biden, have called for better worker protections, while GOP leaders have called for stronger employer protections.

Senate Majority Leader Mitch McConnell has insisted that the next pandemic relief bill include immunity for employers against coronavirus-related lawsuits.

“If we do another bill, it will have liability protections in it for doctors, for hospitals, for nurses, for businesses, for universities, for colleges,” McConnell said July 1. “Nobody knew how to deal with the coronavirus,” he said, and unless they’ve committed gross negligence or intentional harm, those parties should be protected from an “epidemic of lawsuits.”

He has proposed a five-year period of immunity from December 2019 through 2024. (McConnell’s office declined to comment for this story.)

Such a measure could derail lawsuits already filed by grieving family members such as Florence Dotson, the mother of 51-year-old certified nursing assistant Maurice Dotson, who died in April. Her son cared for nursing home residents with COVID-19 in Austin, Texas, and did not have proper personal protective equipment (PPE), her suit alleges. He later died of complications from the virus.

Another lawsuit alleges that an anonymous New York nurse requested but was denied proper PPE when she was assigned to care for a patient in intensive care with COVID-19 symptoms but who was tested for the virus only after death. The nurse, who contracted COVID-19 shortly after, is seeking $1 million in damages.

U.S. workers in every industry have filed more than 13,300 COVID-related complaints with OSHA, records show, demonstrating widespread concern over their lack of protection at work. Twenty-three complaints reference a fear of retaliation, including among hospital workers who say they were pressured to work while sick.

The agency has closed investigations into those complaints but is investigating 6,600 more open complaints. OSHA has so far issued one citation against an employer, a spokesperson confirmed.

Employers are also struggling, evidenced by layoffs and an 11% unemployment rate, which the Congressional Budget Office projects will hit 16% in the coming weeks.

States have taken some matters in their own hands during months of federal inaction. At least 25 states have created some degree of legal immunity for doctors or facilities, through new laws or executive orders, according to the National Conference of State Legislatures.

Officials in Virginia and Oregon have taken steps to enact their own heightened worker-protection rules related to the virus.

The effort to pass an OSHA rule to protect workers from infectious diseases dates to 2010, when regulators saw the need to better protect health care workers after the H1N1 flu pandemic.

Michaels, the former OSHA director under President Barack Obama, said the effort has stalled out under the Trump administration. Trump administration OSHA officials have defended their track record, saying adequate rules are in place to protect workers.

But a similar push succeeded in California in 2009. State officials passed a plan requiring health care employers to create a plan to protect health care workers from airborne viruses.

The California measure went further, requiring hospitals and nursing homes to stockpile or be prepared to supply workers with an N95 respirator — or an even more protective device — if treating patients with a virus like COVID-19.

Workplace safety experts in California, though, said it hasn’t worked as intended.

As more than 17,600 health care workers have become sick and 99 have died in the state, it’s become apparent that health care employers did not have plans in place, said Stephen Knight, executive director of Worksafe, a nonprofit focused on workplace safety.

“This was just a massive missed opportunity and one that cost people their lives,” Knight said. “People are just dying … with frightening regularity.”

California nurses who died after caring for COVID patients without an N95 respirator include Sandra Oldfield, 52, who wore a less-protective surgical mask while caring for a patient who wasn’t initially thought to have the virus.

A complaint to OSHA about a lack of N95 respirators that preceded her death put her hospital, Kaiser Permanente Fresno Medical Center, in violation of the state’s standard, the state labor department confirmed.

However, alternative guidance is now in place because of global PPE shortages, according to the California Department of Industrial Relations. Kaiser Permanente, which is not affiliated with KHN, confirmed that the patient was not initially thought to have COVID-19 and that the company has followed state, local and CDC guidance on patient screening and use of PPE.

Hospital officials, who have come out against a national OSHA standard, said the plans that were in place did not account for the scope of the current pandemic and global supply chain breakdown.

“It is not for a lack of caring or trying to keep our workers safe,” said Gail Blanchard-Saiger, vice president for labor and employment with the California Hospital Association.

 

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17 comments

  1. Adam1

    Just complete incompetence all the way around. It wont do workers much good to legislate more usage of PPE if employers who saw months of little or no revenue can not afford the PPE or if there is no PPE to buy.

    What were our leaders doing during the first lock down? Trump rightly claimed to be a war time president – but that’s about as far as it went – limited lip service. Where is the massive redistribution of resources to PPE production to enable returning to work? Production is up, but no wheres near where it needs to be, evidenced by returning shortages. Where is the army of trained track and tracers? Most states have too few and it’s a big reason for the new spike in cases.

    The wealthiest country in the world endowed with lots of natural resources is only in this position because of incompetence of its leadership.

    Reply
    1. Samuel Conner

      > Trump rightly claimed to be a war time president – but that’s about as far as it went – limited lip service

      One gets the impression that the purpose of this claim was to undergird the later declaration of “victory” (which we are now seeing various shades of), regardless of what actually happened.

      The man is all appearance and no substance. But in that regard, he may not be worse than the organized parties, which are all appearance and bad substance.

      Reply
      1. SufferinSuccotash

        His “war” was the equivalent of shooting down a single Japanese plane over Pearl Harbor and then declaring victory.

        Reply
    2. Ian Ollmanm

      It wont do workers much good to legislate more usage of PPE if employers who saw months of little or no revenue can not afford the PPE or if there is no PPE to buy

      .

      Those employers aren’t making it anyway. They need to shut down or scale back to cut expenses. None of this works the way we would like until the virus is no longer a big problem. That is, PPE or sending workers home. There is no such thing as back to normal with the virus still running amok because the customers won’t show up to the party if they are afraid.

      Reply
  2. John

    “Republicans seek immunity for employers from lawsuits related to the pandemic, an effort they say would give businesses the confidence to return to normal.” For which definition of normal? The Republicans (and so-called ‘centrist’ Democrats) made their allegiance clear a long time ago. It is employer, business, corporation first and there really is no second. Toss a few scraps to the plebs. They don’t count for much.

    Reply
    1. Samuel Conner

      It’s hard for me to see how the logic of employer impunity does not extend to other workplace protections until business confidence improves. And, as I understand it, OSHA was already not doing a great job prior to the pandemic.

      As workers become more precarious, that surely will adversely affect demand, which will impair business confidence.

      Maybe AI-driven machines will provide both demand and supply in an ideal future. Who needs mortal men, doomed to die?

      —-

      The thought also occurs that just as public school teachers have found it necessary to spend their own funds to provide needed classroom supplies that their schools cannot or will not provide, it may be that workers will find themselves obliged to provide their own PPE. Perhaps everything is working to plan.

      Reply
    2. Oh

      You can tell that the insurance company is at work here. They want to collect liability premium but never pay out any claims. Part of the FIRE operation.

      And here’s Nancy:
      “They’re saying ‘Let’s give immunity — no liability — for employers,’” Pelosi said. “We’re saying the best protection for the employer is to protect the workers.”
      Sure, sure, such a champion of workers who doled out trillions to the corporations and pittance to the workers.

      Reply
    3. PeasantParty

      They always put away that, “Free Market” mumbo jumbo when rushing to save their pals, and their own crooked business dealings.

      Reply
  3. Ford Prefect

    There has been pushback on “Black Lives Matter” by claiming that “All Lives Matter”. However, that is clearly not the case. In reality, it appears that it is “Shareholders Lives Matter”. The serfs of all colors are probably not going to react well to that message.

    We live in an age of leadership and management crisis. The leaders and managers want things to happen, but have no idea how to make them happen, except for tax cuts and increasing income and wealth inequality which has been very successful. The key to great administrations like FDR and Eisenhower is that they selected excellent leaders and managers and gave them authority and responsibility (can’t separate the two). They would try things, and fix or replace them if they didn’t work. Out of these administrations, we got massive infrastructure improvements we still rely on today, Social Security, Brown v. Board of Education, and numerous other things.

    Even the beginnings of anti-racism were being defined in that era, despite redlining etc. Unfortunately, the country has not had the will to properly enforce the civil rights acts from the 60s, so we are still paying the price of suppressing the potential of a significant potential of the population.

    Today we are in a disengaged country with almost complete lack of leadership on a government and corporate basis. As long as the stock market is doing well, it is rated a success regardless of what is happening in the real world. The greatest country in the world should have PPE shortages fixed by now. Instead, we will soon be back to where we were in March.

    OSHA and companies should be figuring out how to work safely, in which case workers and custoemrs will retrun confidently. Instead they just bleat requests for corporate immunity from lawsuits. As a result, we are seeing the economy proceeding to shut itself down as people head for their bunkers. Fear of loss of wages is the only mechanism that they now have to enforce compliance to return to work. That will help support a certain level of the economy, but it will not allow it to even achieve its prior peak. To surpass previous peaks, we need to move byond a state fo fear and go forward with confidence.

    This is how empires fail…..voluntarily.

    Reply
  4. Oh

    I wonder if we can have a national referendum to cut the salaries of Congress and the Administration as well as their benefits? Their incompetance needs to be rewarded.

    Reply
  5. tegnost

    “The debate reflects a deepening schism between the major political parties, with Democrats focused on protecting lives and Republicans focused on protecting livelihoods.”
    That’s a laugher

    In reality it’s the states who can’t print money vs the feds who can… It’s what they do to foreign countries all the time, one might call it *the* foreign policy of the USA.

    “States have taken some matters in their own hands during months of federal inaction. At least 25 states have created some degree of legal immunity for doctors or facilities, through new laws or executive orders, according to the National Conference of State Legislatures.

    Officials in Virginia and Oregon have taken steps to enact their own heightened worker-protection rules related to the virus.”

    And about the impact, as in who’s dying…

    ““This was just a massive missed opportunity and one that cost people their lives,” Knight said. “People are just dying … with frightening regularity.””

    The people dying in a class based distribution, the global overclass are not dying, they’re getting filthily richer, and dems and rebubs alike think that’s just fine, but the dems are little tiny bit more concerned with appearances because it makes them appear useless, while the republicans are operating as always for big business. Too bad there’s no opposition to that.

    Reply
    1. lyman alpha blob

      In reality it’s the states who can’t print money vs the feds who can…

      Exactly. And if you want this to end, then pay people to stay home. The government can pay people through unemployment, alleviating payroll costs for businesses. Businesses can then furlough workers and hire them back when the pandemic has passed. Business owners can live off the same unemployment as the rest of us.

      And if that isn’t enough for the wealthy to make the mortgage payment on their McMansion, well let them work that out with the bankers. I, and I doubt anyone else, will feel too bad if the wealthy need to unload a yacht or two to make ends meet.

      Reply
    2. Darius

      Never let a crisis go to waste. The pandemic is creating a mass of desperate, powerless people that the ruling class calculates it can exploit more easily. It doesn’t matter that the overall level of economic activity will tank. The people who really matter will do just fine and will consolidate their power. They will be like the gun-toting couple in their gated community, except they will be guarded by mercenaries.

      We will see an elite overclass with almost god-like technological and institutional power, and great masses of desperate peons clawing out an existence and suffering the occasional interference of their omnipotent overlords. There probably will be a small class of bourgeoisie administering the whole thing.

      Reply
  6. sharonsj

    Just more proof that our overlords don’t can’t if we live or die, just if we cost them money. There are plenty of desperate people who will go to work and, if they die, they are easily replaceable with more serfs or robots. And whether we live or die, they will also do their best to take every penny we have.

    It’s estimated that 20 million people (both renters and home owners) could end up homeless because of the pandemic. Low-wage workers are paying between 30% and 40% of their income just for housing. Almost half of the businesses on Yelp! are closing permanently. Get ready for tent cities everywhere and a lot more crime, violence, and protests. And the Dems and the GOP will still be arguing and doing precious little for the rest of us.

    Reply
  7. NotNow

    Based on the modified Constitution, “Government for the Corporation, by the Corporation, of the Corporation…”, guess what’s going to happen? The Senate’s version of the bill grudgingly will pass the House.

    Sure, the Democrats will complain, after all it is election year, but will vote for the Senate bill…

    Reply

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