COVID Workplace Rules Endorsed, But Not Final

The Northam Administration’s Safety and Health Codes Board agreed yesterday that COVID-19 in the state’s workplaces demands an emergency state response, but the nature and exact wording of that regulation remains undecided.  If adopted, formal regulations come with the potential for heavy penalties for employers cited for failures.

Earlier versions of the key documents have already been revised by state staff, so should be reviewed again by concerned parties. The draft rules (here) and a related 200-page briefing package (here) were first made available June 12 and then revised June 23, right before Wednesday’s meeting. Further changes are likely.

A window for on-line written comments closed June 22, but more than three thousand were received, with the business community reaction overwhelmingly negative. To review the written comments already filed visit the meeting information page (here) and scroll down to a long list of documents. The massive set of online comments are on this related page on Virginia’s Regulatory Town Hall website.

The vote to proceed with something came after a contentious virtual emergency meeting where only members of the board and staff were able to speak. Three of the board’s members opposed the emergency declaration and three abstained, perhaps reflecting the broad and strong opposition the draft proposal generated from Virginia’s busines community. It will meet again to dive into the actual text soon. 

An earlier motion to hold off action under further public comment could be received, perhaps allowing for in person discussions with affected parties, failed only narrowly, and only because  two Northam Administration “ex officio” members of the panel voted against it. The motion was made by Richmond labor and employment attorney Courtney Malveaux, who served as director of the Department of Labor and Industry under Governor Bob McDonnell.

If agreed upon at the next meeting, regulations could take effect by July 15. The board did agree to use a specific emergency authority granted by Code of Virginia Section 40.1-22 (6a) that allows for adoption of a permanent regulation within six months, and that clearly is the goal of some.

The Washington Post and Virginia Mercury have stories about the meeting, but so far they are the only media paying attention. No such regulations exist in any other state, apparently, and past efforts to impose a specific set of rules related to a specific infectious disease have failed.

— SDH

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13 responses to “COVID Workplace Rules Endorsed, But Not Final

  1. Jim,
    Maybe a review/article on the APA lawsuit being worked on from Nandan Kenkeremath would be interesting? It seems all the catches/checks/balances are getting ignored.
    That alone should have smacked the Republicans, conservatives, and other anti govt take over folks, into action.
    Vic

  2. Curious there is no mention of labor unions or workers’ groups that support these regs. The Post and a Mercury mention them.

  3. Between the business rules and the school reopening plan, Wise King Ralph seems determined to regulate the state back into the stone age.

  4. re: ” No such regulations exist in any other state, apparently, and past efforts to impose a specific set of rules related to a specific infectious disease have failed.”

    that’s an interesting statement – and if true , doesn’t sound good.

    But places like New York , Connecticut if not anything are uber regulation states…

    One thing noticed, is interviews with folks who run businesses who say they don’t know what the rules are – and that is not a good thing for them. They want certainty…

    • I’d noted earlier there are proposals elsewhere, including in DC. But the Post tells me Virginia’s effort will be the first to pass so it must be true. The pot of gold at the end of this particular rainbow (I think) is making COVID compensable under workers compensation, with a presumption you got it at work (and not at home, in a store, on the beach, in a restaurant…..) That California has now done.

      • I have long been skeptical of presumption provisions in workers’ compensation and disability laws. JLARC released a study last December of the presumptive provisions of workers’ compensation that allayed some of my suspicions. It concluded that the best available scientific evidence indicates that existing and proposed cancer presumptions are appropriate”, while pointing out the “requirements to establish cancer presumptions are unreasonably burdensome and not supported by science.” It did conclude, however, that the “cardiovascular disease presumption is difficult, but not impossible, for employers to rebut,” It would be all but impossible to rebut the presumption the COVID-19 was contracted on the job. For a copy of the study, see http://jlarc.virginia.gov/landing-2019-workers-compensation.asp

    • “One thing noticed, is interviews with folks who run businesses who say they don’t know what the rules are – and that is not a good thing for them. They want certainty…”

      And I sincerely doubt that a 38 page regulation which requires a 214 page “briefing package” to explain it is going to provide certainty about anything – except that our state government likes to hear the sound of its own voice.

  5. Could be worse. Just heard a news story indicating that one industry has its workers in quarantine. 200,000! That’s the number of people currently at sea and who have been quarantined to their ships since January. That doesn’t include live-aboards sitting at anchor of some small atoll.

  6. ” Emergency Temporary Standard/Emergency Regulation”

    That’s government-speak, alright.

    • I was puzzled by this terminology as well. As explained by the staff of DOLI in the briefing paper, it was intended to give the Board the option of adopting an emergency regulation under the provisions of the Administration Process Act (Title 2.2 of the Code of Virginia) or an “emergency temporary standard” under the provisions applicable to DOLI (Title 40.1). There is little substantive difference between a “regulation” or a “standard”. In this instance, the primary distinction is that an emergency standard expires after 6 months whereas an emergency regulation can remain in effect for up to 18 months.

  7. “The Temporary Emergency Court of Appeals was established by the United States Congress in December 1971 with exclusive jurisdiction to hear appeals from the decisions of the U.S. district courts in cases arising under the wage and price control program of the Economic Stabilization Act of 1970. . . . [Congress] abolished the Temporary Emergency Court of Appeals and transferred both its jurisdiction and its pending cases to the U.S. Court of Appeals for the Federal Circuit effective March 29, 1993.” https://en.wikipedia.org/wiki/Temporary_Emergency_Court_of_Appeals

    That’s how they deal with “temporary emergencies” in Washington!

  8. The definitions are very robust in the regs presented. Robust and specificity in the definitions make wiggle room impossible. On page 10 of the proposed regs, there is a curious statement- if you are in compliance with the CDC regs, you are considered in compliance with the regs if enacted. So why the regs at length??

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