How Employers Must Prevent COVID, Or Else

Virginia Department of Labor and Industry

By Steve Haner

The first thing every employer in Virginia needs to understand about the state’s new COVID-19 temporary workplace standard (here) is it is universal. It applies to every workplace, public and private, for-profit and non-profit, with 10,000 workers or two. The rules are the same, “one size fits all,” without regard to the nature of the industry.

The second thing every employer in Virginia needs to understand about the standard is that it is only temporarily temporary. The goal, and work will begin quickly, is to convert the set of requirements into a permanent regulation, with a permanent burden on employers going forward to protect their employees from a disease circulating widely outside their establishments. 

The third thing every employer in Virginia needs to understand about the standard is that complying with federal standards or specific industry standards may not protect you from state complaints or fines. Efforts to create a regulatory “safe harbor” for those who met similar federal standards were initially accepted, but in the end watered down under vast union pressure, peaking in this story in Virginia Mercury the day of the final meeting.

The “loophole” (Mercury’s loaded word) created by relying on compliance with the Center for Disease Control’s recommendations was closed, and such compliance only provides protection if the CDC approach “provides equivalent or greater protection than provided by a provision of this standard.” If you can’t prove it does to the satisfaction of the state, you may be fined. What you’ve been doing to date, no matter how well it has worked, may not match these new standards.

Only Virginia’s public and private schools of higher education, and public and private K-12 schools, can rely on re-opening plans cleared by the state rather than this standard. But, again, those plans must “provide equivalent or greater levels of employee protection than a provision of this standard.” It is not really an exemption.

For the other estimated 300,000 work locations around the Commonwealth, the new paperwork, the costs of compliance and the consequences of violation are unavoidable. Any case involving an employee or somebody else in the workplace must be reported to the Department of Health, and three cases within fourteen days must be reported to the Department of Labor and Industry.

The July 15 approval by the Virginia Safety and Health Codes Board, after four contentious meetings marked by close internal votes, is being cheered by labor unions as a victory with national repercussions, and Governor Ralph Northam has been happy to take a deep bow. They claim it will lead to more economic activity, but there is reason to fear it will add costs and uncertainty that impede re-openings and hiring. People will ultimately pay for compliance twice, as a customer or as a taxpayer.

The full 35-page text of the standard with all the changes incorporated was released July 17 and should be published in a Richmond newspaper within a week or so. Once published, it is in effect for six months, or until Governor Northam lifts his emergency declaration, or until a permanent version is adopted.

These rules must be viewed in connection with the other shoe which may drop, an effort to make COVID-19 a recognized workplace disease covered by workers compensation benefits. Unlike with traditional occupational diseases, no job or workplace activity causes COVID-19. People can catch and spread it anywhere.

All Virginia employers – even those with only a few employees and perhaps even the self-employed – must begin to assess and rank every job, job task and facility for their level of risk to viral spread, screen all employees and suppliers entering, begin to keep detailed records on employees showing symptoms or testing positive, conduct contact notifications within their workplaces, and prevent the return of known or suspected sick employees until medically cleared.

That clearance could include two negative test results, taken 24 hours apart, but given the backlog of testing in recent weeks that may greatly extend the employee’s absence. Getting medical clearance after a period of three days with no symptoms may prove quicker. Any employee who tests positive but shows no symptoms will also be unable to enter for at least ten days. Employers must pay for tests.

Every employer with ten or more workers has 60 days to prepare a written disease prevention and response plan. Within 30 days they must conduct extensive training with all employees, geared to the risk level of their jobs. If the employee then behaves as if the training didn’t stick, another round must be provided, as must be the case if the company’s plan is amended or the understanding of the disease changes.

The initial draft of this was published in mid-June, with only a few days allowed for public comment. Thousands poured in anyway during that short period, including the most impressive and near unanimous outcry from the business community in recent memory. Only a few changes were made to accommodate those employer concerns, although a minority on the board put up a spirited resistance in close votes. Ex-officio votes controlled by Northam cabinet officers were often crucial in overriding amendments.

One of the final debates July 15 involved protection for employees who complain of workplace violations, not just to regulators or their fellow employees, but also to outside news media or on social media platforms. Even if false or posted in malice, Facebook comments accusing your employer on this issue cannot lead to any internal disciplinary action.

Following a pattern on other controversial elements over this process, a motion to remove the part about outside media was defeated on a 5 to 5 vote, with various abstentions and absences. Five of fourteen board members imposed that standard. The final adoption by only 9 of the 14 board members was the final indication that this was not a consensus product and is likely to meet continued resistance.

First published this morning by the Thomas Jefferson Institute for Public Policy.

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52 responses to “How Employers Must Prevent COVID, Or Else

  1. First and foremost, everybody in business or who runs any kind of workplace — any kind — needs to download, print and start to study that document.
    https://www.baconsrebellion.com/app/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf

  2. No doubt the Northam administration already has identified “consultants” who will get rich(er) peddling their “compliance” wares. Of course these are completely nonpartisan consultants.

  3. Awesome! I am especially excited to see how non proffits, Petersburg, and Richmond will comply.
    Will they also be spot checking the mobile car wash guys and food trucks for compliance? Oh that’s right, they can’t even seem to hire the what 1,400 professional bi-lingual virus detectives, but now VDH will have staff to ensure compliance or is his just compliance via labor union lawsuit?
    They should just outlaw transmitting the virus and the problem would be solved!

    • Easiest way to comply with much of this will be to just bar the public totally. Government offices will start there. The compliance burden is tremendous — classifying each job and each job task as “very high,” “high”, “medium” or “lower” risk? (There is no “low” or “no” category.) That will take hundreds or thousands of man hours. The unions wanted to be consulted on all those risk assessments, too.

  4. Virginia has been so shamelessly pro-business, anti regulation and anti worker. Finally, a change.

  5. Good bye mom and pop anything!
    If this continues through a poor holiday season our options will be Kroger, Amazon, or Walmart.
    Maybe that Amazon stock I thought was overpriced is actually a bargain when I look out 20 years.

    • Yep. NFIB members fighting tooth and nail, the big companies probably quietly happy to see the little guys struggle….Crushing the competition is a standard goal of regulations.

  6. Somebody in Virginia Govt or the GA does not trust the Federal OSHA to deal with this in not surprisingly given the way other agencies have been force to stand down …. is this worse in the opposite direction? perhaps. Better to just rely on the Federal OSHA? ummmm

  7. Eric the Half a Troll

    “…begin to assess and rank every job, job task and facility for their level of risk to viral spread, screen all employees and suppliers entering, begin to keep detailed records on employees showing symptoms or testing positive, conduct contact notifications within their workplaces, and prevent the return of known or suspected sick employees until medically cleared.”

    Any company who is not already doing this is indeed putting their employees and the general public at risk unduly. They should not have to be forced to do what is right, but alas, this is the world Trump and his followers have created.

  8. The first question will be what standards Maryland develops. A lot of high-paying jobs in the DC area can be as easily done in Maryland as in Virginia. Given Virginia’s path under the new Democratic leadership to raise taxes Maryland is no longer prohibitive vs Virginia. The second question will be what regulations are instituted by the other 48 states. In case Gov Northam didn’t notice, a lot of high-paying jobs are being dome from home. While most employers would like to see their employees get bak into offices there is no compelling reason for those offices to be in Virginia. If an accountant can successfully work from home in Vienna, VA why bring the accountant back to an office in Tysons? Or, at least, why hire new accountants there? If Tennessee has more reasonable workplace rules … there are plenty of offices in Nashville. And, as has been proven, Physical co-location is not necessary.

    I’m involved with two technology start-ups and one long established and fast growing technology company. I can’t imagine a reason to put any of those companies’ operations in Virginia. Our incompetent state government used to be able to claim Virginia as a low tax state and a good place for business. Our current incompetent state government can claim neither.

  9. I think DJ is right with respect to what businesses will do if they consider one states regulation too onerous but I disagree that this will be the case compared to Maryland.

    Companies will become known with respect to how their employees fare in the COVID19 era and the ones that make the news with complaints from employees will gain a reputation they do not want – much like a restaurant gets a bad report from VDH or a burger chain gets E-coli in their burgers.

    I think the anti-regulation folks are underestimating how the average citizen feels about this… Everyone says they hate regulation until it affects them individually.. then it changes.

  10. Maybe it’s time for Virginia businesses to think about relocating to states with a better business climate — like California or New Jersey.

    • Those high-tax, high-regulation Yankee states? Surely you jest!

    • Or Utah, Tennessee, Idaho, Wyoming, Florida, Georgia, etc. With the ascendency of the Democrats Virginia moved from being a Southern state to being a Northeastern state from a tax and regulatory perspective. In the technology world the first rule is to locate where talent is available. The second rule is to locate where the talent will stay. Northern Virginia has available technology talent in good supply. However, the cost of living (including ever increasing taxes) and the quality of life (especially transportation) have made NoVa a place of declining interest for technology talent. Given the COVID-19 revolution in distance work for white collar jobs I expect a decline in those jobs throughout Virginia. Established businesses may not relocate out of Virginia but they will certainly grow elsewhere.

      • The last time I was this focused on the CNBC state rankings was the year they broadcast the announcement from the pier beside an aircraft carrier at the shipyard, which kinda gave away the result…..Will be still be No 1?

      • lets look at GDP per capita in states with perceived heavy regulations compared to GDP per capita for states with less regulation:

        New York 90,043
        Massachusetts 86,942
        Connecticut 81,055
        California 80,563
        Washington 80,170
        New Jersey 73,451
        Maryland 71,838
        Virginia 65,824

        Kentucky 48,697
        South Carolina 48,547
        Alabama 47,735
        Idaho 46,043
        Arkansas 44,808
        West Virginia 43,806
        Mississippi 40,464

        • Yet New York, Massachusetts, New Jersey, California and Connecticut are losing businesses and population. Apparently they are living off economic legacy, not off current attractiveness to businesses and workers. I noticed that Florida, Texas, Nevada, Arizona and Nevada off your “low regulation, business friendly” list.

          • They are – but it’s not exactly an exodus:

            https://en.wikipedia.org/wiki/Comparison_between_U.S._states_and_sovereign_states_by_GDP_per_capita

            these are facts.

            California has been and remains one of the biggest economies in the world. It’s the number one producer of food for the US and it’s the technology center of the US. It has stricter regulations than the US as evidence by the California “standard” for auto emissions.

            Regulations attract workers and workers attract business.

            The economy of California is the largest in the United States, boasting a $3.2 trillion gross state product as of 2019.[9] If California were a sovereign nation (2019), it would rank as the world’s fifth largest economy, ahead of India and behind Germany.[10][11] Additionally, California’s Silicon Valley is home to some of the world’s most valuable technology companies, including Apple, Alphabet Inc., and Facebook.[12] In total, over 10% of Fortune 1000 companies were based in California in 2018, the most of any state.[

          • Just in case there is any confusion here–as far as Virginia is concerned, increasing taxes and adding regulations will NOT turn it into an economic powerhouse like California.

            The taxes and regulations are an effect of the economic growth, not the cause.

          • Then how come the high regulation states do well economically?

            California if 5th in the world. If we believe the regulation claims -Mississippi or South Carolina ought to be , no?

          • Because their economy was growing BEFORE they started implementing regulations.

            Do you seriously think that all Virginia needs to do is implement a bunch of taxes and regulations and the same lazy dipsticks that sit in their double-wide trailer strung out on painkillers will suddenly become successful entrepreneurs?

          • I think California did regulations long ago and their economy is still vibrant even with them.

            The “list” I used was from Wiki – rank states by GDP per capita

            here’s another source:

            https://www.statista.com/statistics/248063/per-capita-us-real-gross-domestic-product-gdp-by-state/

          • Look at what those states were doing economically in the early part of the 1900s. While you’re at it, compare the literacy rate of those states with Virginia during the same time period–yea, that left a mark.

            Then compare what was going on in those states in the 1950s with what was going on in Virginia (I’ll give you a hint: Massive Resistance. It did NOT help Virginia’s economy).

            So you are comparing states with over 100 years of economic growth AND higher taxes and regulations to Virginia, and somehow coming to the conclusion that adding higher taxes and regulations to Virginia, which does NOT have the history of economic growth, is going to have the same result?

            My opinion on this–the boat of economic opportunity sailed decades ago. Virginia wasn’t on it.

            So sorry.

          • It’s like this:

            “I noticed that really fast powerful cars have loud exhaust systems and spoilers”.

            “Therefore, if I make my exhaust system really loud and add a spoiler, it should make my car really fast and powerful”. (No, it doesn’t!)

            Loud exhaust system and spoiler = high taxes and regulations
            Fast and powerful car = strong economy

            This sort of thinking is known as the “cargo cult mentality”.

  11. Just as earlier predicted here on Bacon’s Rebellion months ago, last March. The onrushing Leviathan state now is crushing the freedom, independence, difference and diversity, of all small and mid sized businesses, main streets retail, urban and suburban and rural living, most particularly Virginia’s middle class and all their private support structures: their churches, private schools, private social organizations, local retail, recreations and gathering places, all chewed up, suffocated, bankrupted, and controlled, in the wake of the state’s massive Leviathan regime that breeds fear, loathing, and arbitrary control of all citizens and their activities of daily living, prosperity and survival. 1984 has arrived in Virginia.

    • The rush headlong into what at least appears to be “mindlessly stupid” regulations and decrees must be the outworking of two principles: One from Plato and the other an insight of HL Menken.

      One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. – Plato

      The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H. L. Mencken

  12. Steve, so after an employer jumps through all the hoops, documents everything as demanded by this, he can’t do anything about an employee who “feels” unsafe and must continue to pay them? Who decides what’s reasonable according to the cited Va Code on whistleblowers?

    “Nothing in this standard shall limit an employee from refusing to do work or enter a location they feel is unsafe. See §16VAC25-60-110 for requirements concerning discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.”

    • This agency, DOLI, would hear an employee’s complaint that they were unfairly fired for refusing to work or to return to work. If the dispute involved unemployment benefits, VEC would determine that.

    • The Imperial Clown Show in Richmond rides again! What constitutes “reasonable fear of injury or death” in the mind of an employee? In March the WHO predicted the fatality rate from COVID-19 to be 3.4%. It now seems that was 3 – 4 times the actual fatality rate. Depending on what you read immunity to COVID-19 after recovery is total, applicable to some people or only temporary. Children may or may not be able to transmit the disease. Ongoing physical ailments in people who have recovered from COVID-19 may or may not occur and may or may not be common.

      One wonders whether LeBron James, who is categorized as obese under federal standards, could insist that he feared COVID-19 injury or death from playing in basketball games.

      There are a lot of dangerous jobs in the world. Logging, oceanic fishing, mining, etc. Even when companies in these industries comply with all the applicable regulations people are injured and die at a pretty high rate. Many people would never consider taking one of these jobs because of the risk. Many people leave dangerous jobs because of the risks. John Urschel was a professional offensive lineman in the NFL. He was highly regarded as an NFL player. But Urschel was unusual in that he was progressing toward his math PhD from MIT in the offseason. One day he decided that the risks of playing professional football were too high and he retired.

      If your employer is in compliance with all applicable rules and regulations and you still feel unsafe you should find new employment.

      • As we observe and try to make sense of the proliferation of oppressive (and in many cases cruel) regulation and decrees from the Northam administration, is it unfair to note that the occupations with highest prevalence of psychopaths are politicians, attorneys, journalists and civil “servants”. I’m not sure if the governor’s medical portfolio includes surgery, but if it does, he is a “twofer’ since surgeons are number 5 on the top ten list. Considering that attorneys dominate the population of legislatures and that politicians generically have a symbiotic relationship with media, can we be surprised that a clown show of cruelty is often the result – especially when politicians and their media friends have managed to scare the stuffings out of voters.

  13. Pingback: Civil War within the Northam Administration on School Reopening Guidelines? | Bacon's Rebellion

  14. Oh, I’m NOT saying that more regulations result in better economies at all.

    I’m saying that regulations – done right – do not stunt growing economies and I give proof of that – several states that have long-standing regulations and long-standing economies.

    There is no correlation that regulations harm economies… it’s a belief …

    regulations protect consumers as well as businesses… and workers…

    we’ve had extensive discussion here in BR about nursing home regulations, no?

    • Regulations, done right, do not stunt growing economies. That is true.

      But this is Virginia. This state’s track record of doing things right isn’t really good.

      It really hasn’t had to be. No matter what Virginia screws up or does wrong, the Feds are always there to be Virginia’s major employer.

    • And, to be quite frank, if the Feds were not there to be Virginia’s major employer, the powers-that-be in this state would, I think, be quite content to have an economy like that of Mississippi, with no real desire to improve it or change it as long as they’re able to leverage graft and corruption to line their pockets.

      I guess you might say that Virginia’s culture isn’t real conducive to economic growth. Not many go-getters in this state at all. Go-getters probably don’t tend to stick around here. They move to places like California.

      • Idiocracy makes sage observations above:

        “Regulations, done right, do not stunt growing economies. That is true. But this is Virginia. This state’s track record of doing things right isn’t really good.

        It really hasn’t had to be. No matter what Virginia screws up or does wrong, the Feds are always there to be Virginia’s major employer … And, to be quite frank, if the Feds were not there to be Virginia’s major employer, the powers-that-be in this state would, I think, be quite content to have an economy like that of Mississippi, with no real desire to improve it or change it as long as they’re able to leverage graft and corruption to line their pockets. I guess you might say that Virginia’s culture isn’t real conducive to economic growth.”

        Idiocracy’s comments have been iron clad true for most all of American history since the dawn of the 19th century until Amazon’s new Virginia HQ decision that it made a couple years ago.

        That single decision by Amazon opened up a once in 200 year game changing opportunity, dropping it into the struggling Commonwealth’s lap as if a miracle after the state blotched and wasted Northern Virginia’s first chance in late 20th century, a debacle of growth from 1960 to 2015, to go alongside the centuries long stagnation of much of the rest of Virginia’s remaining cities, towns or countrysides.

        This unexpected new opportunity came by reason of a unique confluence of events. Amazon, a unique high / low tech world altering company, headquartered in Seattle, had abruptly seen a critical critical need to escape its birthplace and move 3000 miles across the country.

        Suddenly then Arlington County Va. (N. Va.) possessed unique qualities that could satisfy Amazons burgeoning new needs that Seattle could not satisfy.

        Given today’s events in Seattle, now suddenly a failing city, ever more lawless and dysfunctional, we can better understand Amazon’s wisdom and prescience to escape that collapsing city.

        Now, too, we understand the great downside of Virginia’s current wildly reckless politics, the huge threat it presents to Virginia’s and its citizen’s futures. Richmond’s collapse is following Seattle’s, daily.

        Now a whole new debacle for Virginia and its people and economy looms.

        Has Amazon jumped from the flying pan of a failing and dysfunctional city into the fire of a failing, dysfunctional state. That question looms. Likely great irrevocable harm has already been done by Virginia’s governing regime to all those high tech, 21st century companies that were to follow in Amazon’s wake to Virginia. Now will these reckless acts of Virginia’s governing regime continue until it destroys Virginia’s future altogether?

        • I’m here in Northern Virginia because..in the late 80s…Mobil Oil decided to move their corp HQ here. They stayed for about 25 years.

          Is the same history going to repeat with Amazon?

          Is Prince William County still going to be a bedroom community when Amazon finally packs it in and leaves?

          Stay tuned, we’ll find out the answers to these questions in the coming years…

          • Reed Fawell 3rd

            I remember those early times quite well, and in great detail, going back to 1950s.

            Northern Virginia did not have to happen the way it did. The causes of the traffic debacle were man made. No serious effort was made fix those causes, save in RB Corridor. Too much money was being made by a relative few in control of government to stop or significantly dilute those causes.

            Amazon and its giant wake offers an opportunity to find altogether new solutions at long last for Northern Virginia, I believe. These solutions now are at great risk, given Virginia’s latest the version of gross government malpractice that is unfolding now before us, as has happened since early 1980s.

        • And…without going into details…the 20/20 view of hindsight makes it crystal clear that moving to Virginia was a bad idea. My dad should have told Mobil Oil to take that job and shove it. (They laid him off 5 years later, and, not being an office paper-pusher, had a heck of a time finding a new job–it would have been much easier for him to find a new job where we lived before moving to Virginia).

  15. I’d advise clients that are engaged in interstate commerce, to band together to file a declaratory judgment action in federal court seeking an order that declares federal regulation of COVID 19 and workplaces preempts state law for those businesses engaged in interstate commerce. Let Herring try to intervene and argue (once again) that state law can regulate interstate commerce. He signed a brief arguing states could regulate the Internet, which, by definition is an interstate network.

  16. Steve H. Stupid question. I gave a sole proprietor LLC. Does this apply to me? Do I report on my own violations? Thanks

  17. I looked in the document and couldn’t find an exemption for home office or telewokers. So do employers have to ensure all of that for us working from home?

    • Another excellent question. Another lawyer bill. Without doubt, these rules provide a strong incentive to continue remote work indefinitely, but wouldn’t that be a nice wrinkle.

  18. Pingback: How Employers Must Prevent COVID, Or Else – Bacon’s Rebellion – The Home Office Channel

  19. Philosophically in the USA, we tend to have a regulatory system and Congress preference that favors small business. I once had a speech, I think it was from the late Rep. John Dingell’s head staff regs writer, that if Congress did not protect small business, the big companies would “roll over in their sleep” and accidentally kill the small companies. So the deep pocket big companies get very tough regs and huge fines, whereas small companies/towns etc. are basically allowed much more freedom re: enviro and other regs. This dichotomy to some extent explains why there are gaps in “ideal stewardship” vs. actual experience.

  20. An excellent post, Steve, reflecting on it a day later than most. It strikes me as a perfect illustration of how to respond to a national pandemic in a federal system. The federalism principle: in a national crisis we need federal leadership, but when that is so totally lacking as currently we do have the States in a position to provide backup. Nothing guarantees that the States will do a better job, and in general they have less experience at running the show, but out of the fifty experiments some will set the better examples the feds could learn from and even follow someday.

    Here, you speak of the fight over the CDC safe harbor and that’s a classic illustration of what goes wrong without strong federal leadership. The CDC, absent WH interference, clearly would have taken a stronger leadership role. Fauci and Birx have said as much. So, the States are doing the job instead. I don’t blame Northam for trying; what we can blame is his execution of the task. How much simpler (and better?) if the feds had established nationwide standards and nationwide employer obligations instead, pre-empting these State-by-State efforts to fill the void? But they didn’t. And won’t, under this President.

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