Sweeping COVID Workplace Regulation Proposed

By Steve Haner

The Northam Administration’s Safety and Health Codes Board will hold an emergency meeting Wednesday –- in a virtual process allowing no public interactions – to impose sweeping new regulatory mandates related to COVID-19 on Virginia workplaces.

They could take effect immediately upon Governor Ralph Northam’s signature, and will not disappear if an end is declared to the current emergencies or the threat of the disease dissipates.

The draft rules (here) and a related 200-page briefing package (here) have only been available since June 12. The window for on-line written comments closes Monday evening. The affected businesses have had some advance warning because union and employee activists have been pushing similar proposals in other states and at the federal level, often without success.

The stated goal is to prevent spread of disease in work spaces, and screening, sanitation, face coverings and social distancing are directed in detail. The focus on workplace safety follows COVID-19 outbreaks in food processing and health care settings. These proposals, however, will reach into every Virginia retail, office or manufacturing space.

To review the comments already filed (776 as of Saturday morning), or to add your own, visit the related page on Virginia’s Regulatory Town Hall website. The deadline for filing is Monday night at 11:59 p.m. The chances that the comments will be assessed and studied before the votes take place on Wednesday are slim and it appears, so far, much of the debate is focused on mask mandates. That is a minor part of this quite broad proposal. 

The first-line enforcement agency will be the Department of Labor and Industry, already enjoying massive new powers and added staff granted by the 2020 General Assembly to field complaints and impose penalties related to hiring, compensation, and alleged workplace discrimination.

Included in the document, still unclear as to whether it is a set of guidelines or legally-binding regulations, are four designations of risk level, imposing somewhat different mandates on employers based on that classification. The rules also seem to change based on the perceived level of infection in a surrounding community. The rules reach into who must leave the workplace when showing symptoms or diagnosed, who may stay but under what conditions, and when employees may return after recovery.

There have always been viral and bacterial threats in workplaces, some of them potentially deadly. The existing health rules and protocols at the state or federal level, and the available remedies, are considered adequate by many of the industry groups pushing back. That is the reason the Trump Administration rejected similar proposals from the national AFL-CIO.

In its comments, the Virginia Poultry Federation notes it already faces penalties if members fail to provide adequate protective equipment or sanitation. They are already complying with additional COVID-driven rules or recommendations from the health and safety regulators and taking their own steps to prevent infection. “There is no scientific basis for regulating beyond what these agencies have recommended to date,” they state.

Plus, there is the pesky problem that the data changes, and then so does the advice. It turns out that forehead temperature readings do not always spot infected people, and the elevated temperature could be from another cause.

“Whether the Commonwealth should require employers to screen their workers with temperature checks given this limited utility, while also considering the risk to the temperature taker, may ultimately be beneficial, but it is a decision that should be made in the ordinary rulemaking process where all available facts and viewpoints can be reviewed in a considered manner,” the Poultry Federation wrote.

Pointing to all the other ways they are regulated, Virginia’s dentists have asked for an exemption from these new workplace rules. “Layering additional documentation and reporting requirements on top of extensive measures that have been instituted already would be overly burdensome and unnecessary,” its leadership wrote.

But the advocates are numerous. The Commonwealth Institute for Fiscal Analysis is now expert in health matters, and recommends the rules include “a presumption of teleworking ought to exist, and the employer ought to be required to justify why workers need to be back in a physical location.”

“With enforceable regulations, workers will feel more empowered to speak out for their safety in the workplace, particularly during COVID when essential workers are risking their lives to keep the economy alive and feed their families,” Jason Yarashes, an attorney with the Legal Aid Justice Center, told the Virginia Mercury last week. The Legal Aid group had petitioned for regulations governing poultry plants. The move prompted Gov. Ralph Northam to ask labor officials to develop the more far-reaching rules now under consideration.

By “speaking out” is he referring to complaints filed with the employer or regulators? It goes further. The draft regulation concludes with prohibitions on any adverse action being taken against an employee “who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media. (emphasis added.)  So go on Facebook and trash your employer all you want, at least on this topic.

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26 responses to “Sweeping COVID Workplace Regulation Proposed

  1. Good article, about an agency that I suspect most Virginians know little about.

    It seems to be the Virginia version of OSHA and the commissioner used to be a crane operator!

    We paddled the Rappahannock yesterday and there are some huge cranes in between the I-95 bridges that are building new lanes and it’s impressive watching them move their swinging lines and balls in between the north and southbound lanes of I-95 and it becomes readily apparent that the operators, in not highly competent could just wreak havoc on the heavily-traveled existing lanes.

    The head of the agency was also a student of an apprentice program that the state fosters/regulates…

    So the obvious question is what would happen if this state agency was not involved in this at all? Or not involved in “boilers” either – “boilers” apparently a big deal.. in terms of their safety and operation.

    So.. I’m not surprised that this agency is now involved in workplace safet with regard to COVID19. And they are working to hear from both business and workers – as they should be.

    Workers should not be forced to work in unsafe conditions or to be told they must or lose their job.

    I really don’t have a problem with an agency – with representatives from both workers and employers – dealing with these issues.

    The big issue with a lot of employers is not that some workers are young and healthy and would likely easily survive the virus. The issue is that the reality is that the workforce also has others who are not young and may have health conditions – as well as workers who have family members who may not be young and healthy.

    All workers do have the right to be able to work in safe working conditions and yes.. we need someone besides just the employers deciding what is safe. Sorry to say – the profit motive sometimes gets ahead of the safety issues.

  2. EO 63, which is cited as the basis for this action in the briefing package, does not mention the Safety and Health Codes Board. It was mentioned in a later press release. So we are now governing by press release.

    • EO 63 directs the Department of Labor and Industry to promulgate emergency regulations. The Safety and Health Codes Board is the regulatory board affiliated with the department.

  3. Steve. One question, when you say that this board will meet with no public interaction does that mean it is a closed meeting? If so, is that against the FOIA law? Thanks

    • Not closed. But the public can only watch, not interact…..It will be especially problematic if substantive amendments appear that were not put to comment.

  4. Most governing boards these days meet “virtually”. They do not meet in a public setting were members of the public can be there and speak.

    It’s not something that Northam is doing to discourage input.

  5. Federal boards like MPOs are also meeting virtually… not sure they are subject to state EOs.

  6. I agree it is responsible to consider whether the existing workplace protections are or are not sufficient, but this process is being rushed — railroaded ?– under the umbrella of panic and emergency. Will Virginia impose restrictions far more onerous than other states and OSHA? If so, why, and what evidence exists they will really help. I’ll be doing a Part 2 on this, looking hard at that question.

    • Comparing Virginia to OSHA and other states is fair although the Trump version of OSHA is not likely to look out for workers.

      I just want to point out also that a lot of business is run by those dastardly liberals as well as people of color – not just blacks but in urban areas all manner of foreign ethnicities.

      Some of this is about standards – to have uniform rules so that we don’t have a wild-wild west of owner-decided variations.

      People who work, at the least, deserve a predictable set of rules for businesses to follow and for that matter – the public itself wants fair treatment of workers.

      Amazon and meat packers, poultry operations and hospitals and others have taken criticism on these issues for basically making up their own rules… and workers did not feel safe.

      When a worker – even a young and healthy one comes down with COVID-19, what are they supposed to do about going home where the rest of their family lives?

      They’re not only out of work but their family is at risk also.

  7. “….and the employer ought to be required to justify why workers need to be back in a physical location.”

    That is my daughter’s feeling (not in Virginia) but she does not want to be forced to go back into the office, unless she has to, to keep her job. The management was asking the employees how they felt. Not sure that’s a good work ethic, but that’s the sentiment out there.

  8. Good reporting Steve. This is very big issue.

  9. “I’m hoping to further spread the word.”

    Yes, Steve, spread the word quick as you can. Remember, once you enter Hotel California, you better leave quick ’cause its always now or never in Backface Northam’s Hotel California.

  10. Comments Made by individuals
    https://townhall.virginia.gov/L/comments.cfm?GeneralNoticeid=1118

    Of the 1240 comment titles at least 575 were opposed to masks and/or the “Emergency Temporary Standard/Emergency Regulation.”
    There were another 149 exemption from these regulations requested by dentists and doctors.
    So the total of comments asking for exemptions to wearing masks or this emergency regulation was 724, (=575+149.)

    There are 655 comment titles containing the words MASKS, MASK, Masks, Mask, masks, or mask. Unless there were additional words in the comment title that explicitly opposed masks that comment was not included in the total of 575.

    My thought is that if I were to have opened every comment I would have found that far more than half opposed masks and/or these regulations. If Northam is stuck on only listening to a select few in the General Assembly then this majority will be ignored.

    • I have been to a number of doctor and dentists appointments recently, and some of them will call you and tell you what to do. Wear a mask, come alone, get your temperature taken and I ask them how they decided what measures to take – and all of them say they are following govt guidelines – and especially the state guidelines.

      I ask them if they think that the guidelines are correct , too weak or too strong and most all of them say – they are following the guidelines that they do believe provide some level of safety.

      The doctors that are in hospitals – at the entrance to the hospital is a person that interviews you with about 5 questions about possible symptoms and who you’ve been in contact with and then take your temperature.

      At most of the stores I go to – whether it be Walmart or CVS or Lowes or Home Depot – they all want you to wear masks.

      The Post office wants you to wear a mask as does the Subway.

      The Stihl power equipment store is 50-50…

      The tree that came down on the road – no one was wearing masks to cut up and remove the tree. Ditto the folks that came to remove a dead tree.

      My credit union no longer allows people inside except by appointment only.

      My financial advisor will not meet personally with you at all – and says that is the policy of the company which is a national company.

      I think most companies want to be well within the state guidelines and most are a step up from the state guidelines…

  11. Interesting thing in the comments section is how many of the are cut & paste jobs that can’t even bother to change the subject line. Whats the point? Who going to read them?

    One could easly write a bot, or use Amazon’s Mechanical Turk, to submit copious cut & paste comments to that site

  12. Because the automatic reflex of many participants on this blog is to accuse the Northam administration as acting outside the law or dictatorially, it would be useful to review the legal framework under which this action Safety and Health Codes Board is proceeding.

    The Administrative Process Act (APA), which sets out the requirements for agencies to propose and adopt regulations, is a real thicket. There is an Executive Order issued by the Northam administration two years ago, setting out the procedures that executive agencies were to follow in the regulatory process, which is a good summary. https://townhall.virginia.gov/EO-14.pdf

    The standard process takes a considerable amount of time and involves public notice, followed by a proposed regulation, an economic impact analysis by DPB, public comment, and, perhaps, a public hearing. The APA does provide for an emergency regulation. Under that process, an agency can propose a regulation, without notice or taking comments, and it becomes effective upon approval by the Governor. The limitation on an emergency regulation is that it can be effective for only 18 months. If the agency wishes to make an emergency regulation permanent, it must go through the standard process for promulgating regulations.

    The Safety and Health Codes Board has separate authority to issue standards. Similar to the APA, the Board may issue emergency temporary standards, outside the requirements of the APA. (See Sec. 40.1-22 (6a) of the Code of Virginia.) There seems to be, at least to this untrained eye, little substantive difference between a “standard” and a “regulation”. In fact, there is so little difference that the Department of Labor and Industry has indicated to the Board that it can proceed either under the APA and issue emergency regulations or under its own authority and issue emergency temporary standards. Hence, the use of these awkward phrase throughout the proposed regulations, “emergency temporary standard/emergency regulation” and “standard/regulation.”

    The process for adopting an emergency temporary standard does differ somewhat from the process for an emergency regulation. The main difference between the two is the maximum duration of the emergency action: 6 months for the temporary emergency standard and 18 months for the emergency regulation. (The other differences are summarized in a chart beginning on page 163 of the briefing package.) https://www.doli.virginia.gov/wp-content/uploads/2020/06/BP-on-Emergency-Regulation.pdf

    The Department has recommended that the Board proceed under its own authority, rather than the APA, for no other reason than to do so “means the Board will be acting under a specified power in its own statute.” Although not required by statute to do so for either emergency standards or regulations, the Board has established a public comment period and scheduled an open meeting to consider the standard/regulation.

    Regarding the question as to whether the emergency regulations are subject to challenge in court, the statute provides that any person adversely affected may challenge the standard’s validity in Richmond circuit court, but “the determination of the Safety and Health Codes Board shall be conclusive if supported by substantial evidence in the record considered as a whole.” That is the purpose of the 174-page briefing document, to establish a record for any court challenge.

    • Following the process doesn’t mean these are necessary or fair. The full APA should be used.

      • You want to stretch it out to Christmas or beyond. But, that would mean there is no emergency. Oh, I understand.

        • Nobody has confidence in the good faith of this crowd. They have no actual grasp of this. I want you to read the document behind what I post tomorrow. This is just a union power play.

  13. Steve, under administrative controls, what do they expect employers to offer for Page | 26 8.Ensure that psychological and behavioral support is available to address employee stress.68
    68 https://www.osha.gov/Publications/OSHA3990.pdfat page 24
    The footnote specifically refers to working in healthcare facilities.

    I found the briefing packet link at https://www.doli.virginia.gov/safety-and-health-codes-board-electronic-emergency-meeting/
    and it doesn’t address that point at all.

    But after looking at the briefing package, I have to ask, who wrote this mess?

    It is a hodge-podge of facts, opinions, news clippings, excerpts from undated journal and magazine articles.
    The briefing package says, “The CDC’s current best estimate of the percentage of persons with positive COVID-19 infections that are asymptomatic is 35%. 84” Then footnotes a CNN article!
    Treating a CNN article as representing a CDC position without checking CDC is bizarre! The actual CDC paper said that evidence supports the possibility of presymptomatic or asymptomatic transmission. It mentions one report of 13% transmission and two models– one suggesting up to half of all infections are presymptomatic spread and one that said four-fifths. Models, not even reports.

    CNN’s headline said “CDC estimates that 35% of coronavirus patients don’t have symptoms.” They say in the article CDC said, “40% of coronavirus transmission is occurring before people feel sick.” CDC didn’t say that, but the package repeats the CNN story as if it came directly from the CDC on page 130.

    Thank you, Steve, for bringing this to our attention.

    • I decided I commented too hastily, and I went back and found the source of the CNN statements. They were picked out of CDC parameters for 5 planning scenarios for mathematical modelers to use to estimate the possible effects of COVID-19. Several times, the CDC noted the parameters were for planning purposes; data was limited (most recent was 4/29); and uncertainty remains around all parameters. If this info is included in a supporting package, it should have been sourced from the CDC site and included all the disclaimers and not presented as seemingly factual sound bites.

  14. Carol is meticulous – that’s a compliment!

    Saw this from AP this morning:

    Hundreds test positive at Tyson Foods plant in Arkansas

    On Friday, Tyson Foods announced the results of coronavirus testing at its facilities in Benton and Washington Counties, Arkansas, and said that about 95 percent of employees who ultimately tested positive for the virus didn’t show any symptoms. Of the 3,748 employees tested, 481 tested positive for COVID-19, and 455 were asymptomatic.

    https://apnews.com/9b2b24d3b3ed981041a7fe6ab499100c

  15. Pingback: COVID Regs Unclear, Unneeded, Contradictory | Bacon's Rebellion

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