Gov. Charlie Baker's proposed four-phase reopening has raised a number of questions, including if and how workers will be able to protect themselves as they return to the workplace. WGBH Morning Edition host Joe Mathieu spoke with Northeastern University law professor and WGBH News legal analyst Daniel Medwed to learn more about workers' rights during the pandemic. The transcript below has been edited for clarity.
Joe Mathieu: There are many laws and regulations in place here, and I know you've been sorting through them to help us understand how workers can best protect themselves as they are asked to return to the workplace. What are some of the highlights we should know about?
Daniel Medwed: This area of the law is governed by a complex mixture of federal and state rules. So let's focus on federal law for a moment. The agency in charge of workplace safety is OSHA, the Occupational Safety and Health Administration, which requires that the workplace is "free of known health and safety hazards." Now COVID-19 is most certainly a known safety hazard, which means that employers must — not may, but must — take precautions to minimize the risk.
What does that look like? Well, in conjunction with guidance from the CDC, we'll undoubtedly see more of what we've already observed: more signage requiring masks and social distancing, hand sanitizing stations, plastic gards in front of counters, admonitions against hand-shaking and office procedures for disinfecting surfaces. What's more, the precise protections may vary depending on the precise nature of the business. We'll presumably see fewer safeguards in a run-of-the-mill office setting than in, say, a hair salon.
Mathieu: So let's put this into practical effect here. Let's say an employee is concerned about inadequate protections at his or her workplace when they show up this morning. What recourse might they have on the federal level?
Medwed: Well, OSHA has a very specific complaint process that allows workers to directly file a grievance against an employer. That, in turn, will trigger an investigation. As The Globe reported just a couple of days ago, Massachusetts workers are utilizing this procedure in droves. Hundreds of them have submitted OSHA complaints since the onset of this crisis. Evidently, Massachusetts is third in the nation behind Oregon and California in this dubious category of complaint filing.
Now, the problem is the OSHA complaint process only works in terms of incentivizing employers to take better precautions if OSHA actually takes those complaints seriously. And that doesn't seem to be the case with the current OSHA regime. As of last week, roughly 13,000 complaints had been filed in recent months. About half of them have been closed. And get this, not a single citation or penalty has been issued to an employer. Not one.
Mathieu: Daniel, you discussed federal OSHA processes and regulations not working that well. How about state laws and regulations? Could workers stand a better chance of protecting themselves through Massachusetts law?
Medwed: Well, that's really interesting. And in theory, the answer is yes. Massachusetts has its own rather vast network of laws and regulations that govern workplace issues. Many of those laws relate to hours and wages, but others do concern conditions, including one law — Chapter 149, Section 113 — that obligates businesses to "provide well ventilated workplaces and avoid unsanitary conditions." Now, the fair labor division of the Massachusetts attorney general's office — Maura Healey's office — has a very robust system for investigating alleged workplace violations and may draw upon a range of civil and even criminal enforcement mechanisms. They can warn the employer, submit a civil citation with a penalty [and] even issue a letter that authorizes a private right of action that allows individual workers to directly sue their employers.
Mathieu: We only have a minute here, Daniel, but I know retaliation is always a question in stories like these. I imagine some workers might be scared about negative consequences if they complain.
Medwed: That's right, and there are several mechanisms in place. For one thing, the fair labor division, which I just mentioned, has a precise procedure for claiming retaliation. And OSHA also has a procedure that's a form of a whistleblower complaint that can be used in that vein, as well.
