Labor groups warn of loophole in Virginia’s COVID-19 workplace safety rules

With a vote expected Wednesday on Virginia’s first-in-the-nation workplace pandemic safety regulations, employers and labor groups are at odds over a provision that would allow businesses to disregard the new rules if they instead follow all CDC guidelines for their industry.

Advocates for workers, including the AFL-CIO and Legal Aid Justice Center, called the language a loophole that will allow employers to skirt otherwise strict regulations that mandate social distancing, employee training and workplace hazard assessments.

Meanwhile business groups called it a sensible approach, noting many workplaces have already adopted the Centers for Disease Control guidelines.

“I think they were trying to recognize that businesses have already put in place a lot of the protocols recommended by the CDC,” said Nicole Riley, the Virginia director of the National Federation for Independent Businesses. “We just think that’s a good way to do it without having to reinvent the wheel for a lot of businesses and creating regulatory burdens that aren’t necessary.”

Currently there are no state or nationwide workplace safety rules that lay out steps employers must take to protect their employees.

Under the draft language, which will go before the state’s Safety and Health Codes Board on Wednesday morning, businesses that choose to implement CDC guidelines rather than the new state rules would have to follow all of the CDC’s recommendations, even though they are presented as optional by the federal government.

The state Department of Labor and Industry has said the approach will still give them the authority to respond to employee complaints, conduct workplace inspections and issue fines for noncompliance.

“If we did an inspection and employers said they were following CDC guidelines, we would be asking them to prove it by providing documents they were referencing and specific provisions they were referencing,” Jay Withrow of the Virginia Department of Labor and Industry.

But labor groups contend that CDC guidelines won’t do as much to protect works as the regulations the state is preparing to adopt.

“For one there’s a lot of them; two, they’re confusing and vague; three, they change all the time,” said Rebecca Reindel, the safety and health director of the AFL-CIO.  “And when you actually look at the structure and the language in them, they’re quite weak.”

She said CDC guidance tends to include language recommending things like face coverings and barriers, but only “when feasible.” And that in many cases, businesses determine those measures are not feasible. The state’s rules are far more specific, laying out other protective steps workplaces must take when social distancing isn’t possible.

“An employer could go through and say, I considered it and I didn’t think I could do it,” she said. “It wouldn’t give OSHA much to enforce.”

She also noted that under the state’s rules, employers would be required to notify employees, the health department and state regulators when workers test positive—a requirement that doesn’t exist in CDC guidelines.

Whether to allow CDC guidelines to stand in for the state’s new rule has been a recurring subject of debate among members of the Safety and Health Codes Board, which has so far held three day-long meetings over the past three weeks to discuss, debate and amend the proposed rules.

Charles Stiff, who chairs the board and represents industrial employers, said he was comfortable with the language because it would make CDC guidance mandatory and enforceable.

Other board members have argued forcefully against it, pursuing amendments to strike the provision.

“If you want to use CDC guidance, so be it, but you still need to follow the standard,” Travis Parsons, who represents construction laborers on the board, told his fellow board members during a meeting last week. “Why are we doing this if we’re just going to allow CDC guidance to exempt people?”