By Steve Haner

More than two dozen Virginia business associations have asked that the state’s Safety and Health Codes Board reject proposed workplace regulations to prevent COVID-19, stating they are unclear, contradictory, and not needed in light of other existing worker protections.

Some of the largest statewide associations, such as the Virginia Manufacturers Association, National Federation of Independent Business, and Virginia Retail Federation are on the list. So are some regional chambers of commerce and the Thomas Jefferson Institute for Public Policy. You can read their 13-page submission here. The conclusion reads:

“It is unreasonable to apply “one size fits all” COVID-19 regulations to all employers and employees.  Codifying guidance is not a reasonable replacement for regulation. It is confusing why after three months, the Regulations are being pursued through an emergency procedure, especially after OSHA (Occupational Safety and Health Administration) rejected the AFL-CIO’s petition for an emergency temporary standard for COVID-19 and the US Court of Appeals for the District of Columbia Circuit denied their petition for a writ of mandamus to compel OSHA to issue an Emergency Temporary Standard for Infectious Diseases.”

The draft rules (here) and a related 200-page briefing package (here) have only been available since June 12. The public comment period closes tonight, and the board is set to meet Wednesday, in a format where the public can only watch. More details are provided in a Bacon’s Rebellion post from this weekend.

A key concern for the coalition and for others who have filed comments against the proposal is the speed involved in promulgating emergency regulations, and the lack of input and debate normally allowed under Virginia’s Administrative Process Act. The coalition believes the Department of Labor and Industry:

“is proposing a wholly new regulatory and enforcement program that, based on the Regulations, will impact every business in the Commonwealth. The public participation and stakeholder involvement procedures outlined in the VAPA are designed to ensure that the impacts of a proposal such as this are fully understood. This is particularly important here, where DOLI is proposing to develop industry-specific or occupation-specific categories of risk.

“…. As a result, stakeholder involvement is especially critical to inform the development of this program and the ten (10) calendar days or six (6) business days to review and comment on over 225 pages of dense Regulations and briefing materials, as well as the utilization of an electronic meeting where no public comments will be permitted, is inadequate public transparency and participation.

“Further, the practical matter of fact is that employers, now three months into the COVID-19 pandemic, have already put into place procedures and controls that may be entirely undone by these Regulations, thus, creating additional regulatory uncertainty that is impractical.

“The Business Coalition is also aware that the proposed Regulations originated on April 23, 2020 from a petition and model language provided by the Legal Aid Justice Center, Virginia Organizing, and Community Solidarity with the Poultry Workers to Governor Northam, Commissioner Oliver, Attorney General Herring, Commissioner Davenport, and Director Graham. It is unacceptable that organized labor had months to advocate for the Regulations, but the business community was only afforded ten (10) calendar days or six (6) workdays to respond without any opportunity to testify before the Board.

Its specific complaints about the draft include how it confuses guidance and regulation throughout the document, which again bypasses procedure intended to protect those being regulated. The draft refers to itself often as a “standard/regulation” as if those were interchangeable when they are not.

The analysis points to six specific contradictory elements, some internal to the document and some instances where the state proposal contradicts other regulations or federal requirements. One seems to force employers to conduct contract tracing on infected employees when that has been the responsibility of the Health Department.

More than six pages of 50 individual bullet points follow, raising questions, suggesting better language, or pointing to unenforceable provisions. The state’s draft is not ready for prime time.. Many of the flaws flow directly from taking the draft from the unions and the groups that exist to sue employers on behalf of aggrieved employees, without seeking input from the businesses themselves.

One of the most egregious – but telling – is a proposed mandate that employers:

“…consult with the Attorney General of Virginia when making determinations in accordance with their obligations under federal civil rights law. The Attorney General (AG) advises and represents the Commonwealth of Virginia. The AG is not equipped to advise private sector employers. Employers must be able to rely on their own counsel. The EEOC has jurisdiction in these matters.”

Readers will recall

that the 2020 Virginia House of Delegates passed legislation to require all employers to submit massive amounts of personnel information to that same office and empowered it to go hunting for instances of unfair pay to punish. Expanding the Attorney General’s Office into an employee complaints bureau is becoming a theme of Virginia following the Democratic takeover.

The first question should always be, are a new set of state regulations needed? Do existing state and federal rules protect Virginians already? Are employers failing in their duties to their workers? Absent clear and convincing evidence in the affirmative, this proposal should be rejected. If not rejected, it needs to go through the full APA review process and be revised.

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11 responses to “COVID Regs Unclear, Unneeded, Contradictory”

  1. LarrytheG Avatar

    I support the process which industry provides their input and I agree that they need to do better than one-size-fits-all.

    I’m not convinced that OSHA has this all figured out – given how the Feds are operating in general these days on COVID19 issues.

    But – if we are going to re-open – shouldn’t regulations run concurrent to that re-opening. If you want to delay the regulations, how would you re-open with any uniform standards?

    But I do take the responses of the business and industry group seriously – and the state should work with them to find agreement. I’d be opposed to the state dictating rules that industry – unilaterally opposes.

    This is an opening for the GOP… no?

    1. Steve Haner Avatar
      Steve Haner

      The negative reaction is quite uniform, and that should get attention. The thing is, it is far more than just OSHA. CDC and other health regulators (national and state) are pouring out guidance – the docs and dentists are right that they have plenty of specific watchdogs. The federales have lots of authority over food production now. There are more than enough standards, and as noted before, this is hardly the first viral or bacterial outbreak to hit workplaces. But suddenly it’s all a panic reaction.

  2. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    That last quote you provided from the proposed standards/regulations is astounding. State law (Sec. 2.2-505) sets out to whom the Attorney General can provide “advice and render official advisory opinions”. As a former high-ranking employee of that office, you know that list does not include private individuals, only state and local elected and state agency heads. (You were too polite to point this out.) I would have thought the folks at the Dept. of Labor and Industry would know that. (I suspect that they were just using the template furnished by the Legal Aid Justice Center, which should have known better.) Moreover, the DOLI staff assert that its submission could be adopted as either an emergency standard or emergency regulation. To be adopted as an emergency regulation, the agency would have needed to consult with the office of the Attorney General (Sec. 2.2-4011). If it indeed do that, the most astounding aspect, then, is that the Attorney General’s office did not delete this reference to employers consulting with the AG “when making determinations in accordance with their obligations under federal civil rights law.” In any event, this set of standards/regulations will probably be a boon for a lot of private attorneys.

    1. Steve Haner Avatar
      Steve Haner

      “As Attorney General, it is my duty to fight for greater justice, equality, opportunity, and security for all Virginians….” That is how the office website now describes the office, or in fact, Herring, as he has phrased it first person. The one I wrote for Earley, which was used for a while after us, was NOT written to highlight the incumbent’s name and stressed that no advice or representation could be given to citizens. Herring’s concludes: “We are here to serve you….”

      1. Dick Hall-Sizemore Avatar
        Dick Hall-Sizemore

        Silly me. I thought the office of the Attorney General was the legal office for the Governor and state agencies.

      2. Nancy_Naive Avatar

        As long as it’s just “serve” and doesn’t include “protect” too. We know how that always seems to work out.

  3. Poor Stephen Moret. He’s been working so hard to make Virginia a top state for business. He is swimming upstream… in a rapid current…. with white water… and crocodiles.

    1. Steve Haner Avatar
      Steve Haner

      Will CNBC publish the list next month on schedule? Something to look forward to….

  4. […] COVID Regs Unclear, Unneeded, Contradictory […]

  5. Peter Galuszka Avatar
    Peter Galuszka

    Curious that nowhere in this post is it is noted that Virginia is taking the lead nationally in this endeavor. Maybe this explains the fervor of so many corporate lobbyists.

    1. Steve Haner Avatar
      Steve Haner

      So the Post says, so it must be true. I knew the battle raged elsewhere but didn’t have a way to know the status. Virginia used to shy away from being the first, wanting to see some outcomes, and seeking to claim government inspectors will keep you safe from a highly infectious airborne disease is breaking new ground…..

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