Groups ask court to force NC Department of Labor to protect workers from COVID-19
Advocates for immigrant workers in North Carolina have asked a Wake County court to compel the Department of Labor to reconsider its decision not to require additional COVID-19 protections for workers.
The move is a response to a letter the groups received from Labor Commissioner Cherie Berry on Nov. 9 stating that such action is outside her department’s authority.
“While I am not dismissing the tragic deaths that have occurred as a result of this virus, statistically, the virus has not been proven likely to cause death or serious physical harm from the perspective of an occupational hazard,” Berry wrote.
She noted that on Oct. 26, as an example, less than 1.5% of people who had contracted COVID-19 in North Carolina died from the virus, and wrote that most of those deaths were people over the age of 65, who are generally “no longer active in the workforce.”
Berry’s letter was a response to an October petition for rulemaking by the labor groups, which primarily advocate for the Latino immigrants that make up majority of workers in meat processing plants and agriculture in the state.
These groups, which include the Episcopal Farmworker Ministry, The Hispanic Liaison of Chatham County, and the N.C. State AFL-CIO, want the state to require employers to enforce social distancing, provide face masks, regularly disinfect the workplace and ensure adequate ventilation, among other steps.
“Workers throughout North Carolina, from all industries, age groups, and across racial and ethnic lines, are not safe at work because of the lack of enforceable COVID-19 workplace requirements,” the petition said. “[The petitioners] are calling on NCDOL to put an end to the dangerous conditions and exercise its power to engage in rulemaking.”
Berry, the state’s five-term Republican labor commissioner who is leaving office in January, declined to do so.
Under North Carolina law, a court can reverse or modify an agency’s decision if it was unsupported by substantial evidence or was arbitrary or capricious. In their appeal filed in Wake County Superior Court on Wednesday, the groups argue that the Department of Labor had no basis to deny their petition.
“NCDOL does not provide any evidence, let alone substantial evidence, for its assertion that COVID-19 is not likely to cause serious physical harm,” they wrote.
The groups also argue that the agency is neglecting its duties to protect working people.
“The statutes giving rise to NCDOL’s authority were intended to ensure safe and healthful working conditions for North Carolina’s workers … This mission extends beyond preventing premature death due to workplace hazards,” the court filing says. “North Carolina statutes charge NCDOL with the protection of all working people.”
The Department of Labor declined to comment Wednesday, saying it had not officially received the court filing. The petitioners have 10 days to officially notify the Department of Labor.
Even if a judge sides with the labor groups and reverses the DOL’s decision, that doesn’t mean the groups would win the protections they argued for in their initial petition.
“It’s a long, slow process. At the end of it, it would just be them starting the rulemaking process,” said Clermont Ripley, co-director of the Workers’ Rights Project of the N.C. Justice Center, which is representing the labor groups. “It is another way to keep the pressure on and keep them accountable, but it’s not a very promising way to get protection in place for workers.”
Rise in COVID-19 among workers
There have been 302 reported coronavirus clusters at workplaces in North Carolina, with 6,886 cases and 31 deaths through Dec. 7, according to the state health department.
The largest share — 4,122 cases and 21 deaths — were associated with clusters at meat processing plants. Those were hot spots for the coronavirus early in the pandemic, but they continue to see outbreaks. There have been 281 cases associated with clusters at meat processing plants since Oct. 21, resulting in two deaths.
These numbers do not reflect cases not associated with a cluster, which the state defines as five cases in the same general setting.
The Department of Labor has received thousands of complaints since the start of the pandemic from workers concerned about lack of COVID-19 safety protections. These complaints have resulted in just five citations, all connected to investigations the department pursued in response to a workplace accident or fatality or a non-COVID-19-related hazard, The N&O previously reported.
In their request for judicial review, the labor groups suggest that by declining to impose additional workplace protections, the Department of Labor was siding with employers over workers. They refer to a Nov. 2 letter from employer associations imploring NCDOL to reject the petition for rulemaking.
The employer associations, including the N.C. Farm Bureau, the N.C. Manufacturers Alliance, and the N.C. Restaurant and Lodging Association, wrote that their members have already taken voluntary steps to protect their workers.
They argued that the proposed requirements would “have a significant and costly impact on all employers across the State” and warned that they could cause the availability of “safe food and shelter, essential supplies, lifesaving services, and the necessities required for daily life” to “grind to a halt.”
One week after receiving that letter, NCDOL denied the rulemaking petition.
The labor groups say the employer associations provided no evidence that the rules would harm commerce. In their request for the rules, the groups anticipated pushback from industry.
“In light of the substantial risk to workers throughout North Carolina, particularly in healthcare, agriculture, and poultry and meat processing, the proposed rule does not unduly burden interstate commerce,” they wrote. “The proposed rule appropriately balances the tremendous benefit of preventing widespread infection in North Carolina workplaces with the incidental impact on interstate commerce.”
This story was originally published December 10, 2020 at 3:14 PM with the headline "Groups ask court to force NC Department of Labor to protect workers from COVID-19."
