They didn’t take any final votes or even discuss the content of the proposed regulations, but a state board weighing what could become the country’s first pandemic workplace safety rules agreed in principal Wednesday to press ahead with the sweeping new mandates.
“In this moment, I think we need to take action,” said Milagro Rodriguez, a member of the state’s Safety and Health Codes Board, which has been tasked with vetting and approving emergency regulations that, among other things, would mandate social distancing in all workplaces and require employers to notify employees if a coworker tests positive for the virus.
In a 9-3 vote, the board declared COVID-19 represents an emergency hazard to all employees and employers in the state. They also voted down proposals to slow the rule-making process down by at least a week to allow in-person public comment, a concession sought by an industry representative on the board who argued that state workplace regulators already have the authority to address unsafe conditions related to the virus.
But the rules, which could go into effect as soon as they are adopted and published, ended up getting delayed anyway because the board adjourned before getting to the point where they would discuss the text of the regulations and potential amendments.
Instead, the nearly eight-hour meeting, held virtually via teleconference, was largely consumed by a broad overview of the COVID-19 pandemic, its impact on workplaces and obscure procedural elements of the rulemaking process.
The board agreed to meet again at some point next week to finish their work.
If the board follows through and adopts the rules, it would be the first state in the country to do so, according to The Washington Post, which described Virginia’s approach as “a potential way forward for other states in the face of federal inaction.”
Gov. Ralph Northam last month directed the workplace safety board to adopt regulations, citing the decision by federal authorities not to act and a petition filed by the Legal Aid Justice Center aimed at securing protections for workers in the state’s poultry processing plants, which have seen extensive outbreaks.
Advocates have been frustrated that the federal Occupational Safety and Health Administration has refused to adopt national rules in response to the virus. The agency has also faced criticism for not enforcing existing rules that could be used to protect workers during the pandemic, so far issuing one citation out of more than 4,000 virus-related complaints.
“The AFL-CIO commends Virginia for being the first state to expeditiously propose a comprehensive standard to protect all workers from COVID-19,” the international labor organization wrote in a comment submitted to the board. “Current federal and state approaches to minimizing occupational risk to SARS-CoV-2 are not working in Virginia.”
Business groups have mostly opposed the new rules, arguing existing regulations and guidelines are sufficient.
“Currently, Virginia businesses must follow existing OSHA statutes and regulations to assess their workplaces and determine the existence of hazards and provide necessary PPE to workers including respirators and eye and face protection,” wrote Nicole Riley, the Virginia state director of the National Federation of Independent Business, which represents 6,000 small businesses in the state. “They must maintain proper sanitation for their facilities. And, most importantly, they have a general duty under the Occupational Safety and Health Act and Virginia law to keep their workplaces free from recognized hazards that cause or are likely to cause death or serious physical harm.”
In total, the state received more than 3,300 comments, though most were critical of a mask mandate implemented last month by Gov. Ralph Northam that’s unrelated to the proposed rules.
“A lot of them said they would not wear masks and would not comply with any order,” said Jay Withrow, the state Department of Labor and Industry lawyer who is leading the rule-making process. “The views of those expressing a refusal to wear masks in a business setting, in our opinion, unintentionally strengthens the case for having emergency regulations.”