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Maryland’s workplace safety agency fails to protect workers during pandemic

PJC advocacy calls for greater responsiveness to worker complaints, development of COVID-19 workplace safety standards

December 10, 2020

MOSH’s actions—and inactions—threaten the lives and health of Maryland workers and constitute an abdication of its responsibility to protect Maryland workers from serious workplace hazards—including those that contribute to the spread of COVID-19 in workplaces. The situation is grave, and we urge OSHA to take immediate action.

These words come from a recent Public Justice Center complaint concerning the state agency Maryland Occupational Health & Safety (MOSH). Over the last several months, we have become increasingly concerned with MOSH’s inadequate response to workplace health and safety complaints. After workers at local company approached us this spring with concerns about insufficient protection from COVID-19, as well as the risks of breathing in contaminants from the manufacturing process, we filed complaints with MOSH on behalf of workers. Workers reported to us that MOSH failed to hold the employer accountable, and so we filed a Complaint About State Program Administration (CASPA) regarding our experience with MOSH with the federal Occupational Safety and Health Administration (OSHA). We are advocating for MOSH to take a more active role in investigating the hundreds of complaints it receives, and in the wake of COVID-19, to develop and adopt standards related to aerosol transmissible diseases. Below is an overview of the ways we are working to get MOSH to live up to its mission of protecting Maryland workers.

Representing workers in filing health and safety complaints with MOSH

According to workers at a local manufacturer, a typical day on the job already involved breathing in numerous contaminants. But workers’ safety concerns have increased amidst the COVID-19 pandemic. In a complaint filed with MOSH in May, the PJC described general workplace hazards and management’s insufficient efforts to reduce the spread of COVID-19 through mask use, hand hygiene, social distancing, and cleaning of the facility.

MOSH’s response to the PJC complaint has been inadequate. MOSH called the PJC to explain that they could not enforce social distancing or mask use for COVID-19 prevention, even though these are standard CDC guidance. MOSH did not conduct an onsite inspection, but instead sent a letter to the employer, asking them to self-investigate and make any needed changes. MOSH believed the employer’s claim that the issues had been addressed without verifying it themselves. When the PJC pushed MOSH for an onsite inspection, the agency advised us to file another complaint, which is contrary to MOSH policy and a barrier to workers seeking justice.

Nevertheless, we filed another complaint in June, asserting that the alleged hazards remained and again requesting an investigation. When MOSH finally conducted an in-person investigation in July, it did not talk directly with workers about the hazards or sickness they experienced. Rather, it said it would work through the employer to schedule worker interviews, a strategy that ignores workers’ fear of retaliation for participating in interviews. Meanwhile, we continue to have concerns about the ongoing hazards in the workplace and the potential for the spread of COVID-19 among workers. Workers report that co-workers continue to contract COVID-19, with several requiring hospitalization.

Filing a complaint with OSHA

Disturbed by MOSH’s apparent dereliction of duty, the PJC filed a Complaint About State Program Administration (CASPA) with the federal Occupational Safety and Health Administration (OSHA). The CASPA described our concerns with MOSH’s inadequate response to our complaints in the context of the state agency’s broader failures to protect workers. Since March 1, MOSH has received 492 complaints about workplace health and safety issues, but has conducted an on-site inspection in only 30 of these cases, contrary to its own procedures. And for those complaints related to COVID-19 (more than 150), MOSH has simply forwarded them to county health departments—even though it is MOSH’s responsibility to ensure that employers provide a workplace free of hazards that can cause serious physical harm or death. Both federal OSHA and state OSHA agencies in other states have issued violations against employers related to COVID-19 under the law’s “general duty clause,” which protects workers against workplace hazards generally. Yet MOSH is refusing to use the law to protect workers.

Advocating for standards related to aerosol transmissible diseases

In addition to the CASPA and advocacy on behalf of the workers, the PJC and allies are also calling for MOSH and Governor Larry Hogan’s administration to develop and adopt standards related to aerosol transmissible diseases and COVID-19.  In the absence of action by the current administration, we are also working with other allies in a newly-formed group, Marylanders for Food and Farmworker Protections, to pass legislation mandating health and safety standards on COVID-19 and aerosol transmitted diseases (ATDs). The bill would require MOSH to enact general, permanent regulatory protections for ATDs and emergency COVID-specific regulations.  For ATDs, the bill would require employers to establish comprehensive infectious control plans and protect employees who raise concerns from retaliation. For COVID-19, the bill would establish emergency standards based on risk levels, and could require employers to provide adequate gloves, masks, sanitation, shift staggering, and physical distancing. The bill is set to be introduced in the 2021 session of the Maryland General Assembly.

The PJC’s advocacy to get MOSH to ensure workplace health and safety has been a team effort. PJC attorneys David Rodwin, Tyra Robinson, and Sally Dworak-Fisher and paralegal Lena Yeakey have devoted many hours talking with workers about health and safety issues, developing advocacy strategies, drafting and following up on complaints, working with allies, and meeting with government officials. We are hopeful that our advocacy on multiple fronts will result in MOSH fulfilling its responsibility to protect Maryland workers.