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.