From Napa Valley Register: New Cal-OSHA standards could help curb COVID-19 spread in agricultural, service sectors

December 5, 2020 by Sarah Klearman

New regulations put into effect by Cal/OSHA last week should strengthen protections for employees confronted by workplace coronavirus outbreaks, experts say — including in the agricultural and service sectors, whose workers have been disproportionately impacted by the virus.

The regulations mandate that employers notify workers of potential workplace exposure to the coronavirus within one business day; provide face masks to employees; and, in the case of a possible outbreak, provide on-site testing during work hours, among other things.

Most of the recently-released regulations “mirror” previously released guidance from Cal/OSHA, according to Napa County Farm Bureau CEO Ryan Klobas, who said he believed the majority of the bureau’s members were following “the bulk” of the regulations released Nov. 30.

Still, the farm bureau would look for clarification regarding how best to comply with certain portions of the new mandates, including providing on-site testing, Klobas added.

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“Everyone wants to ensure they’re compliant, but we’re (dealing with) practical issues – like limited availability of testing, which could cause an issue,” he said. “Once Cal/OSHA releases more guidance, then we can educate our membership about how best to comply.”

The importance of the newly released standards goes beyond the written regulations, according to Laura Stock, director of the Labor Occupation Health Program (LOHP) at the University of California, Berkeley. Most impactful, she said, will likely be the legal weight the regulations carry — a change from previously issued guidance. (Stock, a member of the Cal/OSHA board who voted to approve the emergency standards this month, emphasized she was not speaking as a board member but rather as LOHP director.)

“Those were guidelines,” Stock said, referencing the industry-specific guidance released by Cal/OSHA a few months into the pandemic. “The difference between regulations and guidelines is that guidelines are not enforceable. They’re recommendations; they’re best practices. They don’t carry the force of the law.”

Cal/OSHA has received more than 4,000 unique complaints regarding potential workplace safety violations relating to coronavirus, according to Stock. Some have been followed up upon, resulting in citations, she said, but limited resources — coupled with the lack of legal recourse available for employees — have made enforcement difficult. That’ll change in the wake of the new standards, Stock added, which will serve as a new enforcement tool for Cal/OSHA.

Heightened standards could help California quell the ongoing third wave of the pandemic, Stock said. In Napa County, occupational-related exposure is the third-most prevalent cause of coronavirus infections, trailing only household gatherings and community spread, Napa County Public Health Officer Karen Relucio told the Register in an interview last week.

In the summer, the county struggled to contain outbreaks of the virus concentrated in its farmworker housing centers — after one round of testing in June, the positivity rate among the all-male residents had reached almost 25%.

Among rights afforded to workers by the new standards is that they should not miss a paycheck because of a mandated quarantine period; employees isolating following a workplace-related coronavirus outbreak must be paid through the two weeks of quarantine. That, in turn, should encourage workers living paycheck to paycheck not to risk showing up at work with coronavirus symptoms or returning to work prematurely after being diagnosed with the virus, Stock said.

Amid the outbreak among the residents of the farmworker housing centers in June, Napa County officials approached the Napa Valley Community Foundation (NVCF) in the hopes of partnering to support the men being asked to quarantine for 14 days.

“The county came to us and said, we’re having a hard time forcing people to stay quarantined because they’re concerned about missing work,” Julia DeNatale, vice president of community impact for the foundation, said. In response, NVCF developed a program to issue $1,000 checks to farmworkers who could successfully prove they had completed two weeks of quarantine. Checks have so far been distributed to 133 workers, according to DeNatale.

Asked if the workers had been denied paychecks by their employers, DeNatale said circumstances were not always so black and white. The issue was often “two-fold,” she explained: some workers, living paycheck to paycheck, could not wait for payment to be remitted on delay. Others — especially undocumented workers — were “concerned with doing anything that’ll rock the boat,” DeNatale said.

“If there is advocacy needed with an employer to say, ‘hey, isn’t it within my rights to continue to get paid?’ they’re not inclined to do that,” DeNatale said. NVCF’s partners, including the Upvalley Family Centers and On The Move, are helping clientele navigate through their rights in the workplace, she added.

Klobas, speaking about Farm Bureau membership, said ensuring infected workers are “taken care of” has been a consistently high priority.

“For all of our members who have been intimately involved with that kind of situation, they want to ensure they have the best, safest work environment possible, because that helps everyone — both employer and employee,” Klobas said. “I think there is very much a feeling of shared responsibility in the agricultural community to make sure all workers are safe.”

The fact that California’s farmworkers and workers at its food processing facilities have been hit especially hard by coronavirus outbreaks seems to indicate workplace safety is not always prioritized as it should be by employers in the state, according to Stock, who did not address Napa Valley specifically. (Farmworker communities, as well as meatpacking centers on California’s Central Coast as well as in Southern California, have remained virus hotspots.)

“Agriculture has been a big issue. That’s why this particular set of regulations includes things that are specific to agriculture, like congregate housing and transportation,” Stock said, referencing provisions that among other things now mandate adequate ventilation and distancing between residents of facilities like Napa County’s farmworker housing centers. “Limiting workplace exposures will be critical to combating the third wave (of the pandemic).”

Napa Valley Community Foundation is preparing to continue to support workers while businesses figure out compliance with the new standards, DeNatale said. In the longer term, though, she is hopeful community members in quarantine may not need as much financial assistance from NVCF, and will instead be able to lean upon their employers for support. Other industries relevant to Napa Valley — hospitality, for example — remain something of a grey area.

“We’re wondering about workers who rely on tips,” DeNatale explained, noting NVCF is planning to meet with an employment attorney to better understand the legal implications of the new regulations. “In that case, what will the employer be required to pay? Those are the things we want to understand as quickly as possible to figure out where the gaps are.”

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