North Carolina Department of Labor Brings Petition to the Public for Airborne Infectious Disease Rules
Labor Groups Within NC Will Have Their Petition for New OSHA Rules Heard This Time Around.
Some things just keep in a perpetual loop. A loop of being brought back into the forefront of the headlines again and again. I’ve seen a lot of headline over the last year presented by major new sources as “new” headlines, with people reacting to it as such, only to know the story was a recycle. I suppose media does this in times of low news stories. We live in a world where we have 15 seconds to grab someone’s attention before they are off to the next shiny object. Another reason to really incorporate things that require attention, direct attention, into your kids everyday life. Multitasking shouldn’t be a focus for a child, not with every other distraction they encounter.
One thing I don’t think any of us will forget anytime soon are the Covid restrictions of just a few years ago, no matter how hard we try to block that one from the ‘ol memory bank. Working in a major speciality retailer during the “Covid Years” was laboring. Please don’t get me wrong, I’m not comparing what we encountered with what health care workers or other sectors experienced, my experience was from a frontline retailers perspective. Masking, distancing, limited number of customers in the building at a time, and we all were elevated to hazmat cleaning crew status. Of course, daycare’s had to follow these same guidelines of disinfecting and limiting contact between little ones, and limiting parents access as we picked up and dropped off our kids.
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Nikki
IS THERE REALLY A NEED FOR MANDATED AIRBORNE INFECTIOUS DISEASE RULES ? NO!
A group representing labor workers within North Carolina, Episcopal Farmworker Ministry; North Carolina State AFL-CIO; Western North Carolina Workers Center; the Hispanic Liaison of Chatham County El Vinculo Hispano; the Union of Southern Service Workers; and the North Carolina Conference of the NAACP submitted a petition request in 2022 that has made it to the NC Register, Volume 38, Issue 13, on January 2, 2024. This group of petitioners “are calling on NCDOL to exercise its power to engage in rulemaking in order to protect workers in our state from COVID-19 and future airborne infectious diseases.”
This is not their first attempt, as I will review later in this article. Timing does seem odd and leaves us wondering, why is a mandate even necessary? A mandate not only for all NC migrant workers, but almost every employee within North Carolina. Is this in preparation for the next major public health scare, is that scare closer than we may think, or is this a leftover an unresolved drain that now must be addressed?
The Public Hearing is Tomorrow, January 23, 2024
Before I get into the details, know that the NCDOL Public Hearing for ‘Petitions for Infectious Disease Rules’ is set for this Tuesday, 1/23/24 @ 10:00 am for the Agriculture - Migrant Housing as relates to Airborne Infectious Disease and 1:00pm for the General Industry / Construction.
There were fifteen spots available at both hearings for people to share public comments in person. It is now our understanding that has opened up to 50 spots. It isn’t clear if that is just in person, or combination of virtual, and in person. NCDOL will fit as many 2-minute comments in as possible within the allotted time for each hearing. If you are registered to speak please make sure you have emailed a written version of your statement to jill.cramer@labor.nc.gov. It is my understanding that Jill Cramer will be send out the list of speakers and your confirmed spot. That may still be forthcoming.
We have heard from many who plan to attend in person tomorrow but the written statements will hold just as much sway as in person statements. If time slots are full, or you are unable to go, you can still be heard by sending in written statements!! Statements are invaluable and professionalism in our responses will go a long way.
Please read to the end of this post for additional details about this Public Hearing and help with writing your statement as they will be accepted until March 4, 2024.
What Are The Petitions - What New Rules?
The proposed rules General Industry / Construction - Airborne Infectious Disease (this post will not cover details around Migrant Housing but are included in this link) are the usual suspects, the familiar requirements we lived through, under the temporary emergency rules, from just a few years ago. There are noticeable changes in a few key areas.
Basically, they say :
•Employers within NC will be required to establish a ‘Exposure Control Plan‘ regarding outbreaks of airborne infectious diseases. Specifically, “establish requirements for employers, employees, and places of employment to assess the risk of, prepare for, control, prevent, and mitigate the spread of an airborne infectious disease to and among employees and employers.”
• Implementation of the exposure control plan occurs when the NC Governor, NCGA, US DHHS, WHO, or US CDC officially designates the outbreak of an airborne infectious disease as a public health emergency.
• Implementation of procedures, for “seeking information from employees” regarding who they’ve come in contact with, test, results, onset of symptoms, etc.
•Exposure controls that will be required for the employer to provide:
-Face Coverings
-Physical Distancing
-Hand-Washing Hygiene Facilities
-Cleaning and disinfection of work premises
-Ventilation
-PPE (gloves,goggles,face shields, etc)
-Vaccination. The employer must support vaccination against airborne infectious diseases for each employee by providing reasonable time and paid leave, such as paid sick leave or other administrative leave.
-Training. To teach each employee about airborne infectious diseases are transmitted (including presymptomatic and asymptomatic transmission), the importance of hand hygiene to reduce the risk of spreading infections, ways to reduce the risk of spreading the airborne infectious disease through the proper covering of the nose and mouth, the signs and symptoms of the disease, risk factors for severe illness, and when to seek medical attention. Plus, policies and procedures that are employer-specific.
-Removal. “Absent temporary medical removal” for infected employees, with alternate work options, if applicable, and returned to work must be “based on and be in accordance with guidance from a licensed healthcare provider or the CDC.”
-Record Log. Employers, with over 10 employees, must establish and maintain a log to record each instance identified by the employer in which an employee is positive for an airborne infectious disease, regardless of whether the instance is connected to exposure to the airborne infectious disease at work.” Log will include employees demographics. A version, excluding identifying demographics, is to be available to authorized parties.
-Reporting. Employers must report each “fatality that is the result of an airborne infectious disease within 8 hours and each inpatient hospitalization within 24 hours, of the employer learning about the fatality / inpatient hospitalization.
If this rule is approved it has a proposed effective date of 12/1/2024.
Why Now NC Department of Labor?
Labor Commissioner, Josh Dobson, granted the petition for the “General Industry/Construction/Agricultural” employers responding to airborne infectious diseases at the workplace on January 12, 2022. The three sectors cover all of us under the enforcement of OSHA. With certain exceptions, North Carolina adopts the federal OSHA, like the CDC, standards verbatim. The attempt to get a petition approved for the mandate of these rules has been in the works, in varied forms, since 2020.
The terms "general industry" and "construction" in relation to the petitions directly correlate to the federal Occupational Safety and Health Standards, which the North Carolina Department of Labor has incorporated by reference for enforcement of the Occupational Safety and Health Act of North Carolina. Employment under OSHA is broken down into Construction, Agriculture, Maritime and General Industry (which basically includes everything else).
Those employed in retail outlets, governments, logging, etc. are considered to be in the "general industry".
General Industry standards are found in 29 CFR 1910: https://www.osha.gov/laws-regs/regulations/standardnumber/1910
Construction standards are found in 29 CFR 1926: https://www.osha.gov/laws-regs/regulations/standardnumber/1926
Agriculture standards are found in 29 CFR 1928: https://www.osha.gov/laws-regs/regulations/standardnumber/1928
It seems fairly clear that NCDOL is not endorsing the petition, which they could do, as the NCDOL website states “publication of the two petitions by NCDOL in no way intends to imply an endorsement of either by the Commissioner of Labor.”1
Ok, Dobson is not saying the NCDOL is endorsing this petition, noted, but who else has shared their opinion?
Recently, we also witnessed support for NC Labor Commissioner Dobson, on X, by NC Senator Jim Perry. Senator Perry was responding to an X post by James R. Lawrence III - Lawyer and Former Deputy General Counsel HHSGOV and Outgoing USFDA Chief Counsel under President Donald J. Trump.
Statements from Candidates for NC Labor Commissioner 2024
Two candidates for the 2024 election of a new Department of Labor Commissioner also made public statements on social media about this granted petition.
Rep. John Hardister released his Statement on Infectious Disease Petition Submitted to the NC Department of Labor on January 12, 2024 and a video statement on X January 19, 2024.
Luke Farley released his statement January 15, 2024 - Farley opposes new COVID mandates under consideration by NCDOL with multiple X posts on the subject since.
The History, Ok My Comments First…
This post has been put together in a short amount of time. I attempted to link all documents referenced so you can read everything yourself. It is important we try to understand how governments works for, and against, us.
I hope this will help in understanding the process NC carries for rule making and will help assist you in explaining it to your children. Yes, please take the time to explain this to them.
I request any corrections be emailed to me. As I have stated in other posts, which I encourage you to read, I do not use an editor. It’s just me and this keyboard and I am a very flawed human doing my best to help you, your family, along the way!
More than anything, this post is to show the reality of a process that citizens are rarely involved in and usually forced to accept an outcome of. This is all because we know little about what is actually occurring.
It’s not exciting, cutting edge stuff. It’s long and drawn out. It’s lots and lots of reading boring things like general status, rules and laws. The rules and laws do play a part in our everyday life, especially those at the county and state level. Changes are rapidly occurring in this country. Preparing your family is something you have control over and the purpose of PFKH.
2020
Ok, here are the details:
October 12, 2020 this same group petitioned for new OSHA rules to be adopted by the NCDOL and that request was denied November 9, 2020 by then NCDOL Commissioner, Cherie Berry. The denial letter, 11 pages, from Commissioner Berry is pictured below.
‘NCDOL will not adopt an emergency temporary standard regarding SARS-CoV-2, and is denying your Petition for Rulemaking to adopt a permanent rule to establish requirements for employers regarding SARS-CoV-2, the virus that causes COVDI-19, pursuant to North Carolina General Statute § 150B-20.’ NCGS 150B-20.
2021
After the denial, a Petition for Judicial Review was filed by this group of petitioners. Superior Court Judge Bryan Collins ruled on Aug. 8, 2021, that the NCDOL was valid to reject the request for the temporary emergency standard but the NCDOL did not follow the rule-making procedure around the petition for permanent, mandated rules.
Judge Collins noted the NCDOL did not provide the petitioners a chance to “ correct the deficiencies” prior to the denial being issued. NCDOL lost. The images below are that ruling. There was no appeal to this ruling, even if it can be, by the NCDOL. Josh Dobson succeeded Cherie Berry as the NC Commissioner for Labor in the 2020 election, Dobson is not running for re-election this year.
August 8, 2021 Petition for Judicial Review - NCDO
It was 2021 when Ray Starling with the NC Chamber Legal Institute wrote how the “timing of this proposal comes relatively late in the pandemic.” Again that was 2021. Late no longer fits this description, this is a seriously delinquent attempt, but it has been revised to all airborne infectious disease and no longer limited to covid.
In this same post, Ray Starling states:
‘By law, if the aggregate economic impact on all persons affected by a rule is projected to exceed $1 million in a 12-month period, an agency must prepare a fiscal note considering, among other things, the costs to the regulated employers. Preparation of a fiscal note can be an intensive, lengthy, and costly process in itself. In addition to the procedural matter, the former Secretary of Labor cited limitations on statutory authority and questioned whether NCDOL has sufficient authority for all the requirements the proposal seeks to impose.’
Petitioners Seek to Impose COVID-19 Workplace Mandates on Job Creators
2022
With all of this known, are we seeing a continuation of an out of the public-view, a back and forth, between the NCDOL and this group of petitioners who filed their next petition in December 2022?
Well, kind of…
The petitions have changed since the originals were submitted in 2020 as they began as an emergency infectious disease standard around covid but now have become expanded to include all airborne infectious diseases. NCDOL has been in contact and provided information to the petitioners regarding how a rule may be written and the statutory authority of the NCDOL.
As mentioned, 2021 found a new Commissioner, Josh Dobson. Dobson was approached by the advocacy groups in January of 2022. After meetings between Commissioner Dobson, agency management, and the advocacy groups, it was then that the petitioners submitted the two “new” petitions on December 14, 2022.
The NC Administrative Procedures Act required NCDOL to provide notice of the new petitions to the Rules Division of the NC Office of Administrative Hearings (OAH). OAH then provided notice of the petitions, through email, on Friday, December 16, 2022 10:07 AM.
Commissioner Dobson responded to the petitioners on January 12, 2023, within 30 days, that their petition for a rule was granted for both Migrant Housing Infectious Disease Petition and the General Industry/Construction Infectious Disease petition. Pictured below.
NC Office of State Budget and Management (OSBM) stance on the next step of the process, the a fiscal note for the petitioned rules, is that until an agency intends to move forward with a rule adoption, and has agreed that the petitioned rules will be acted on by the agency, no fiscal note is required.
NCDOL has not decided to move forward with these rules, therefore, this is why no fiscal note is attached to the petition, it was not required at this point in the rulemaking process.
The process of making a rule in North Carolina is very specific and apparently extremely lengthy. Before an agency may file a rule at the Rules Division of the Office of Administrative Hearings (OAH) it must submit to the NC Office of Budget and Management a fiscal note, and have the fiscal note approved. Drafting a fiscal note is a very lengthy process.
Additionally, all rules must follow specific written format; vague terms cannot be used; and the actual authority for the rule must be cited.2 Petitioned rules are required in a specific rule format. In this occurrence the NC Register appears a little different than the December 2022 petitions as NCDOL was required to update the petition to the correct format prior to submitting to the NC Register.
Finally, the petition lists authority for the new rule as"Authority G.S. 95-133 - Office of Director of Occupational Safety and Health; powers and duties of the Director which, in part, reads:
‘The Commissioner shall make and promulgate such rules, amendments, or revisions in rules, as the Commissioner may deem advisable for the administration of the office.’
Is this saying the authority the petitioners are claiming for this new rule is that the Commissioner can approve rule new rules? This is obviously a question for an attorney and not one I ask because I know the answer. The above mentioned statute gives the Commissioner of Labor general authority to adopt rules.
No other specific current law / rule was cited. If no statutory authority exists under which to adopt a specific rule, then the rule cannot be adopted and if an agency does not have very specific authority to adopt a rule, then the rule will not receive final approval by the Rules Review Commission. Chapter 150B of the NC General Statutes covers this entire process.
A Call To Action!
Now, what can you do? As mentioned the Department of Labor will be hosting two public hearings on Tuesday, January 23, you can watch or listen:
10:00 am -- public comment about the migrant housing petition (https://call.lifesizecloud.com/20075131 or call +1 (312) 584-2401, 20075131# )
1:00 pm -- public comment about the petition that effects virtually all employers/employees (https://call.lifesizecloud.com/20086796 or call +1 (312) 584-2401, 20086796# )
If you have secured your spot to speak tomorrow, HEALNC has provided the following details:
Jill Cramer will be sending out a spreadsheet in the order in which we will speak. It is a first come, first serve basis.
She has over 50 people registered to speak. Our impression is that she is referring to 50 in person speakers. The hearing room can accommodate 15 of us at a time, so they will rotate in groups of speakers.
Each speaker will have 2 minutes.
In order to ensure your statement becomes part of the public record, please submit a written version by email to jill.cramer@labor.nc.gov.
The lobby at the DOL building is small, so it is likely that some of us in person speakers will have to wait outside for our turn to rotate into the hearing room. Please bring a warm coat. Please only come if you are scheduled to speak.
Enter through the green door. It stays locked, so you will need to ring the bell to enter.
If you have questions about whether you have an in person spot, please wait for the e-mail from Jill Cramer later this evening. HEALNC does not have this information
Can’t Be There, No Problem!
Written statements will be accepted until March 4 so take this opportunity to maximize the number of written statements emailed to Jill Cramer at the Department of Labor, her email jill.cramer@labor.nc.gov, opposing the petition rule.
Statements from business owners expressing how a rule like this will cripple their business with additional restrictions and a complete overreach into the private sector by government. The financial burden that small businesses will encounter will be extreme.
Statements from everyone on how this can deteriorate your quality of life, bring stressors to your livelihood as a working citizen within North Carolina.
If you need help around talking points for your own statement to the NCDOL about this pending petition, HEALNC’s has provided this helpful HEALNC’s has provided this helpful guide to assist in formulating your own statement.
The Last Thing… Addressing the Petition’s Expert Declaration
The Declaration of Linsey C. Marr, Ph.D.
Statements from academics contradicting the below statement from Linsey C. Marr, Ph.D. from Virginia Tech would be extremely useful!
Dr. Marr’s declaration is “Exhibit B” within the 12/2022 petition. Dr. Marr is well known in the world of Civil and Environmental Engineering. Pictured below.
A clip 60 Minutes clip of Dr. Marr on X and a few of her publications can be found as footnote details of this post. 3/4/ 5/ 6/ 7
The MacArthur Foundation awarded Dr. Marr with their 2023 Fellows Program honors. The MacArthur Fellowship Program is a "no strings attached" award in support of people, not projects. Each fellowship comes with an award of $800,000 to the recipient, paid out in equal quarterly installments over five years, typically 20 to 30 Fellows are selected each year.8
‘Linsey Marr is an environmental engineer examining indoor and outdoor air quality and airborne pathogens that affect human health…Marr was among the first to argue that airborne transmission via aerosols is a major mode of transmission for COVID-19. She and collaborators explained that infectious virus is carried in small aerosols that can infect others both at close range and at long distances in indoor air. Marr provided important evidence that prompted the eventual paradigm shift in global understanding of COVID-19 transmission. Her research also informed public health guidance aimed at mitigating airborne transmission, such as masking and improved ventilation and filtration in indoor spaces.’
