New COVID workplace rules were rejected. Where do NC labor commissioner candidates stand?

Labor Commissioner Josh Dobson decided not to adopt two new rules proposed by advocacy groups requiring masking in certain instances, physical distancing and more safety measures in workplaces should the state be faced with an infectious disease akin to COVID-19.

Dobson said on Wednesday in a news release that he had decided not to adopt the rules proposed in December, with the decision coming “after carefully reviewing the rulemaking petitions, the record, public comments, listening to both sides and considering the North Carolina Department of Labor’s statutory authority.”

In late January, the NCDOL held an hours-long public hearing where the vast majority of over 50 people spoke out against the two new proposed rules.

Dobson is a Republican and is vacating the office after a single four-year term. Various candidates jumped at the chance to fill his role, including Republican Luke Farley and Democrat Braxton Winston, who advanced in the March primary and will face off in November to take over the role.

Here’s a look at where these two candidates stand on whether to put in place new COVID-19 workplace rules.

Braxton Winston’s stance

Winston, a former Charlotte City Council member, attended the January rulemaking hearing and spoke in favor of the rules.

He said that during the COVID-19 pandemic, “the federal government did not effectively and efficiently operationalize their adopted exposure control plans at the pandemic’s onset. They were supposed to be the quarterbacks and they fumbled the ball.”

He said that plans help prepare for a response should the need arise but “there were no plans in 2020, and we all suffered because of it ... I encourage this department to continue to receive feedback from its constituents, make necessary revisions and work to adopt this rule to protect our workforce.”

“The North Carolina Department of Labor must effectively quarterback should the need arise,” he said.

Asked by The News & Observer for any comment on Dobson’s decision and asked whether he would take action to implement new COVID-19 rules, should he be elected, Winston shared via email the statement he made during the January hearing.

In the thick of the pandemic, for many months, North Carolina closed or put restrictions on in-person schools, restaurants, bars, gyms, sports and entertainment venues, playgrounds, public spaces and businesses. Democratic Gov. Roy Cooper issued statewide executive orders, and local governments set rules that varied across the state. In February 2022, North Carolina eased COVID-19 requirements, citing widespread access to COVID-19 vaccines.

The state also shared weekly COVID-19 briefings throughout 2020 and 2021 and implemented a “Three W’s” communication strategy, calling on people to wash their hands, wear a mask and stay 6 feet apart from others.

In charge of much of the state’s COVID-19 strategy was Dr. Mandy Cohen, who has since been named the director of the Centers for Disease Control and Prevention, which laid out guidelines throughout the pandemic on how to respond.

North Carolina ranked right around the middle of COVID-19 mortality rates nationwide and fared better than most other Southern states, according to CDC cumulative data.

Luke Farley’s stance

Farley has come out against the proposed rules.

In a January news release he questioned whether anything had been learned from “big government’s first shutdown of our schools and businesses.” He said no new COVID-19 workplace mandates are necessary.

“The last time we had mandates and lockdowns, it was a disaster for our economy and students. As Labor Commissioner, I’ll fight against any attempt to bring back those failed policies,” Farley said.

“If you feel sick, don’t go to work. It’s that simple. We don’t need a bunch of burdensome new regulations to address a commonsense problem,” Farley said, “Mandates are about controlling our lives, our schools, and our businesses. We’ve had enough.”

Farley is an attorney who works on construction law, including occupational safety and health requirements. In a News & Observer candidate questionnaire, he said he believed the biggest issue in the state he would tackle if elected was the regulatory climate. He said that he would work to protect workers without bankrupting businesses in the process. He also said in that questionnaire that the COVID-19 petition before Dobson should never have been granted.

“Had I been labor commissioner, I would have denied the petition. When it comes to protecting our workers and our small businesses from heavy-handed COVID rules, I won’t give an inch,” he said.

According to an NCDOL flow chart, when a petition for rulemaking is received, it triggers the rulemaking process.

The Episcopal Farmworker Ministry, which was one of the groups that requested these new rules in December, won a suit against the NCDOL in 2021.

The group sued after the NCDOL rejected its petition calling for a permanent set of COVID-19 workplace safety standards for workers. Superior Court Judge G. Bryan Collins ruled that the NCDOL rejected it without reviewing it first as the department’s policy requires.

Farley was not immediately available to comment Wednesday after The N&O contacted him.

More details on the proposed rules

One of the two rulemaking petitions received by the NCDOL was aimed at mitigating the spread of airborne infectious diseases among migrants and their dependents employed in agricultural or other seasonal jobs. The other focused more broadly on those employed in various fields.

Both rules would have applied to any airborne infectious disease designated as presenting a public health emergency by North Carolina’s governor, General Assembly, health and human services department or certain federal agencies.

The proposed rule for those employed in various fields would have implemented measures including requiring employers in North Carolina to create a written exposure control plan. It also would have required that employers notify employees of an applicable disease in a timely manner and required there be a method for employees to report airborne diseases in their workplaces.

It also laid out “exposure controls,” including requiring employees to maintain physical distance — following recommendations from public health agencies — or to wear a face mask if physical distancing was not possible. It also would have required employers to provide hand-washing hygiene facilities or, if not possible, provide hand-sanitizing facilities and hygienic supplies.

The rule also would have required employers to provide and require employees to use personal protective equipment, such as face shields, gloves and goggles, if the state’s health and human services department or the CDC recommended or deemed it necessary.

It did not require employers install new ventilation systems but did require these be maintained to ensure proper function.

As for migrant employees, the rule proposed new safety measures for the transportation of migrants, including requiring employers transport migrant workers in vehicles that allowed them to sit at least six feet apart or maintained partitions. It also would have required cleaning work vehicles daily, providing hand sanitizer in each vehicle and masking inside the vehicle.

In terms of migrant housing, employers would have had to provide face coverings and would have been required to open screened windows and doors for ventilation and more.

The rule also would have required migrants be provided with access to the phone number of the local health department.