What Workers Could Gain from the Md. Essential Workers’ Protection Act

Del. C.T. Wilson (D-Charles) defended the Maryland Essential Workers’ Protection Act, sponsored by Economic Matters Committee Chairman Dereck E. Davis (D-Prince George's, on the House floor. Photo by Danielle E. Gaines.

Despite strong pushback from the business community and moving late in the legislative session, the Maryland Essential Workers’ Protection Act made it through both chambers by Sine Die. The emergency measure was substantially amended, but advocates say essential workers can still meaningfully benefit from the provisions that survived.

Above all, the bill’s significance comes from the clarity it could provide on workers’ rights, which has been obscure throughout the COVID-19 pandemic. More specifically, it would provide workers a recourse if their rights are violated by requiring the Maryland Secretary of Labor to establish coronavirus-specific safety regulations, also known as an “Emergency Temporary Standard.”

Under the Trump administration, the federal Occupational Safety and Health Administration refused to issue an Emergency Temporary Standard, making it hard for workers to demand safe working conditions during the pandemic.

While several states — such as Virginia, California and Oregon —enacted their own temporary standards through executive orders or state agencies, Gov. Lawrence J. Hogan (R) said last summer that a standard was unnecessary because local health officials have the jurisdiction to shut down unsafe facilities.

Advocates contend that such a standard is necessary given that Maryland Occupational Safety and Health (MOSH), which is responsible for enforcing safe working conditions, has not been doing a good job during the pandemic.

Nursing home workers were given rain ponchos and shower caps for protection, others were asked to reuse disposable PPE or purchase their own and many were uninformed of nearby positive COVID-19 cases, said Ricarra Jones, political director of 1199 Service Employees International Union, which represents more than 10,000 health workers in Maryland and Washington, D.C.

And workers at Perdue, a chicken processing plant on the Eastern Shore, reported that employers made them eat ice cream in order to pass their temperature checks when they came to work sick, said Chloe Waterman, program manager with Friends of the Earth and a part of the Marylanders for Food and Farm Worker Protection coalition.

But of more than 100 closed COVID-19 complaints in Maryland, only three received an inspection, according to a federal database on COVID-19 complaints in March.

MOSH “doesn’t want a standard because they say they don’t need it, but then they say that they can’t cite employers without the standard,” said Debbie Berkowitz, the Worker Health and Safety Program Director of National Employment Law Project. ”It’s like a catch-22.”

So, labor advocates turned to the legislature for help. Hogan has not yet indicated whether he will sign or veto the Maryland Essential Workers’ Protection Act.

If enacted into law, the Emergency Temporary Standard would require employers to notify the Maryland Department of Health of positive COVID-19 cases within 24 hours, inform employees about positive cases and apprise employees of their rights to report workplace safety violations.

MOSH would also have to report to the General Assembly the number of work safety violation complaints received, the number of site inspections and information on employer citations by January.

“This would be a huge impact for Maryland workers because right now, MOSH has done virtually nothing to protect workers during the pandemic,” Waterman said.

“Right now, employees have no real recourse if they are subject to unsafe conditions,” Waterman continued. “This emergency temporary standard will, for the first time, give employees recourse to get enforcement help from the state, to require their employer to make these changes so that they can come to work safely and don’t have to choose between their paycheck and their health.”

The bill would also grant essential workers access to personal protection equipment, free testing and the right to refuse dangerous work during public health emergencies.

However, the initial $3 an hour in hazard pay was struck from the bill, and essential workers will have to provide documentation if they need to use “public health emergency leave,” or paid time off to isolate if exposed to the virus, to care for a family member, or to take other health precautions.

Paid sick leave would also be contingent upon funding from the state or federal government. Although funding could possibly come from President Biden’s $1.9 trillion pandemic relief package, known as the American Rescue Plan, it would not be guaranteed, according to Tyra Robinson, attorney for Public Justice Center.

“We are still disappointed that it didn’t go quite as far as [advocates] wanted it to go,” Robinson said. “A lot of the protections were stripped [from the original bill].”

Hogan did include funding for hazard pay for essential state workers through the end of the year in his supplemental budget, which Jones of 1199 SEIU credits to labor advocates’ efforts.

In testimonies, businesses expressed concern over the extra responsibilities and costs they would have to endure while enforcing worker safety protections, especially given that businesses are also recovering from the pandemic. This helps explain why the bill was significantly amended.

“The goal is to protect our workers and keep our state running,” Del. C.T. Wilson (D-Charles), who defended the bill on the House floor, said in an interview. “And we can’t do that if we’re making it financially impossible for these essential employers to remain open.”

“We can’t mandate [hazard pay and paid sick leave] from businesses without closing those businesses down,” Wilson continued.

Against a backdrop of muddied worker safety standards throughout this pandemic, however, this bill is still critical in clarifying workers’ rights and having no fear of retaliation while demanding those rights, Wilson said.

Virginia enacted its Emergency Temporary Standard in July, and over the past year, there has been no evidence indicating that businesses have shut down as a result of the new standard, said Jason Yarashes, lead attorney of Virginia Justice Project for Farm and Immigrant Workers at Legal Aid Justice Center.

But the fact that the onus is on states to issue virus-specific safety regulations speaks to the fragility of workers’ rights nationwide, Berkowitz said.

“One of the things COVID exposed is how weak worker safety rights are because if OSHA fails and says we’re not going to inspect [work facilities] because we don’t have a standard — that’s it, workers have no right to go into court and enforce their worker safety rights,” Berkowitz said.

The Biden administration had directed OSHA to issue new safety regulations to protect workers by March 15, but the agency has not announced an emergency temporary standard to date.

On Wednesday, Biden called on employers to give workers time off with pay to get vaccinated or to recover from any side effects from the shot.

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