Statement to demand that Governor Baker enforce COVID-19 Workplace Health and Safety Regulations, including the new OSHA Emergency Temporary Standard for public sector healthcare workers

July 14, 2021
On May 13, the Centers for Disease Control (CDC) issued new guidance removing mask requirements for fully vaccinated people.  Approximately 62% of people in Massachusetts are fully are vaccinated. But this vaccination rate is not equitably distributed.  According to the Kaiser Family Foundation, only 53% of Black and 49% of Hispanic people in Massachusetts are vaccinated.  The more contagious Delta variant is taking over as the dominant coronavirus strain in Massachusetts. People continue to be hospitalized - and to die. We are not finished – or more accurately, COVID-19 is not yet finished with us. 
Nevertheless, on May 29 Governor Baker re-opened Massachusetts with minimal restrictions. There are two critical ways in which the Baker Administration is failing Massachusetts workers.  
First, the Department of Labor Standards has is no longer enforcing its COVID-19 Workplace Safety regulations - despite the fact that these protections are still needed and that there is a clear legal requirement that regulations stay in place until there is a public hearing to discuss any change. While masks are still required in schools, correctional facilities, public transportation, healthcare facilities, and congregant care facilities (enforced by the MA Department of Public Health), many vulnerable workers in other facilities now have no protections. The unilateral action taken by DLS violates state law while endangering Massachusetts workers. 
Second, on June 10, the Occupational Safety & Health Administration released updated COVID-19 guidance for all workplaces and an Emergency Temporary Standard that covers workers in healthcare facilities (.29 CFR 1910 Subpart U).  In Massachusetts, public sector workers are protected by our public sector OSHA law (Mass. Gen. Laws ch. 49, section 6 ½). Regulations promulgated under this law (454 CMR 25) require that all OSHA standards that are enacted by federal OSHA automatically apply to public sector workplaces in Massachusetts: Section 25.02 incorporates the federal OSHAct language and standards, including both the General Duty Clause (29 U.S.C. § 654) and any standards included in  29 CFR Parts 1903, 1904, 1910, 1915, 1917, 1918, 1926, 1928, and 1977. This incorporation by reference is necessary if the Commonwealth is going to apply for and be granted, state-plan status under 29 U.S.C. § 667. As new standards are promulgated by federal OSHA, these standards, therefore, become incorporated into the enforceable standards under M.G.L. c. 149, § 6½. There is no exception for emergency standards promulgated under these parts of the Code of Federal Regulations. The new federal emergency standard covering healthcare facilities and COVID, 29 CFR 1910 Subpart U, that became effective on June 21, 2021, is therefore now part of the mandatory regulations that must be enforced by DLS. This is particularly important in light of the expanding risk of the Delta coronavirus variant and the abysmal history of the spread of the virus in nursing and other facilities under Commonwealth administration. 
We demand that the Governor require the Massachusetts Department of Labor Standards do its job: 
 (1) The Massachusetts Department of Labor Standards (DLS) must continue to enforce the existing COVID-19 Workplace Health and Safety regulations and not abandon their role in protecting the health and safety of Massachusetts workers. In fact, DLS should use the public process to strengthen its regulations to align with current science including airborne/aerosol viral transmission to ensure workers are protected from inhalation of the virus. 
 (2) The Massachusetts Department of Labor Standards must enforce the new OSHA Emergency Temporary Standard for public sector health care facilities.  Our public sector healthcare workers -- whose lives are on the line -- deserve no less. 
Jodi Sugerman-Brozan, MassCOSH 
Christine Pontus, Massachusetts Nurses Association 
Beth Kontos, American Federation of Teachers of Massachusetts 
Elissa Cadillic, AFSCME 1526 
Steven Tolman, President, Massachusetts AFL-CIO 
Darlene Lombos, Greater Boston Labor Council 
Jeneczka Roman, Massachusetts Public Health Association 
Chris Condon, SEIU Local 509 
Merrie Najimy, Massachusetts Teachers Association