Employer COVID Mandates Might Outlive Pandemic

by Steve Haner

Virginia’s emergency temporary workplace standards on COVID-19 are one step closer to becoming permanent, over the continuing loud objections from employers that they are duplicative, expensive, and not making anybody any safer than existing health and safety protections already do.

UPDATE:  The text of the final permanent standard approved Wednesday was finally posted publicly Jan. 15.   

The 9-4 vote by state’s Safety and Health Codes Board Wednesday followed a longer and more open process than used for the adoption of the temporary standard about six months ago. This time around extensive public comments, spoken and written, were accepted and drafts were circulated with reasonable time for study. Written public comments pro and con and other key documents are on a Department of Labor and Industry website.

The supportive comments most often come from organized labor, strongly in favor of a permanent standard and with various recommendations to strengthen it. Few employers, public, private or non-profit, are exempt from this standard and its potential penalties.

This time around the board also had an extensive economic impact analysis on the regulations, prepared by outside firm Chmura Economics and Analytics.  While long, it provides one of the easier to understand outlines of the various sections. In general, the conclusion was that there will be little additional expense to the state’s employers because most of what this rule requires is already required.

The outside report, along with supplemental document from the staff, lists about 30 existing state or federal workplace safety or health regulations (see the list on pages 3 and 4) that overlap with this set of rules, and notes the general duty state law already imposes on every employer “to furnish to each employee safe employment and a place of employment that is free from recognized hazards.”

With regard to the need for this additional regulatory effort, the state’s position is that it adds great benefit. Yet the state claims it adds no additional cost because it overlaps with all these other rules or executive orders already in place and most of these expenses are already mandated.

The impact statements go on to offer estimates of how many staff hours it will take to meet some of the added administrative burdens: Four to five hours to conduct a risk assessment, seven to ten staff hours to write and implement a return to work policy, only one to two hours to write a policy about wearing masks when two employees travel. How about one to two hours per balky employee? Company leaders may find the estimates less than realistic.

Employers seeking to understand this regulation may want to read this document first, rather than the  legalese of the regulation itself. It is more clear on the requirements. The appendix on the final two pages is the best list of what this standard mandates, and again shows how most duplicate existing health and safety rules.

Chmura estimates about 13,500 of Virginia’s 285,000 plus workplaces fall into the very high or high COVID exposure categories, with the most stringent requirements. Most are small businesses. An estimated 360,000 people work there. Fewer than half of Virginia’s workforce falls into the low risk range.

Despite the pages of new testimony and hours of hearings, little was changed between the original and the final temporary rules, however. The first round of rules was tied to the various states of emergency declared by Governor Ralph Northam, and once those expire this issue must return to this board for reconsideration. Another simple majority vote at that time keeps the standards in force even as the COVID threat retreats.

Six months following the adoption of the temporary standards, there is also no additional evidence that workplaces are major locations for COVID transmission, or that the state is finding many employers behaving recklessly. In fact, there was little discussion of active enforcement of this particular standard so far. The Virginia Department of Health is enforcing the various Governor’s Executive Orders.

“This is a big box-checking exercise,” complained board member Courtney Malveaux, an employment law attorney and one of the nay votes. He said that COVID-19 is a widespread, general public health crisis, not a workplace hazard. The regulations already in force or put out specific to COVID by the federal authorities are what are protecting workers.

The same theme was picked up in comments from a large business coalition (read them here), which included the Thomas Jefferson Institute for Public Policy:

“…verifiable data on infections, hospitalizations, and deaths by workplaces (categorized by low to very high risk) is effectively non-existent. In fact, VDH data indicates that COVID-19 confirmed deaths are primarily with citizens over 70 years old and with individuals in long term care facilities. The “grave danger” determination for ALL workplaces must be reconsidered especially when it is still unclear how many infections by type of workplace have been documented…”

Malveaux was able to amend the final document to remove an attempt to regulate employee leave policies under cover of COVID protection. He also found it odd that the Northam Administration opposed language he proposed that would have given the employer ability to prevent employees from working if the employer believed that had been exposed outside of work.

When adopted last summer, the temporary standard was hailed as the first in the nation. Now a few other states have adopted their own state COVID-related workplace standards to supplement the federal Occupational Safety and Health Administration and the Centers for Disease Control. California put one in place, somewhat based on Virginia’s, just as the fall surge exploded in that state.