State delegate joins business owners in lawsuit challenging Virginia’s virus workplace safety regulations

By: - September 22, 2020 5:43 pm

A server brings food to customers on the patio at Plaza Azteca in Henrico, Va., May 16, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)

A state delegate joined the Virginia Manufacturers Association and other business owners to challenge emergency COVID-19 safety regulations adopted by the state’s Safety and Health Codes Board in July.

In a Sept. 15 filing with the Richmond Circuit Court, Del. Dave LaRock, R-Loudoun, argued that he has been “uniquely harmed” by executive actions taken by the board, Gov. Ralph Northam, and state Health Commissioner Dr. Norman Oliver. 

Other parties in the lawsuit include Leon Benjamin Sr., ,a pastor at New Life Harvest Church in Richmond, and Jon Tigges, a Loudoun County vineyard and venue owner who previously — and unsuccessfully — challenged Northam’s executive orders during the pandemic.

“In many ways, the measures go too far,” said LaRock, who has previously supported legal challenges to overturn the governor’s executive orders but has never before become a party to one. “Certainly, some measures would be in order, but I think the governor could have done a lot better to create the least restrictive regulations.”

The lawsuit aims to halt the state’s emergency temporary standards for businesses, calling them “impermissibly vague” and arguing that the board failed to follow administrative processes laid out in state law. 

It also argues the regulations incorporate several “illegal” executive orders issued by Northam throughout the pandemic — including an indoor mask mandate and phased social restrictions — and seeks to challenge them in the context of the new standards.

The suit was filed against Northam, Oliver, the Safety and Health Codes Board, and C. Ray Davenport, the state’s commissioner of labor and industry.

“Gov. Northam is committed to protecting workers from COVID-19, and he’s proud that Virginia was the first state in the nation to implement enforceable workplace safety standards,” Northam’s spokeswoman, Alena Yarmosky, responded in a Tuesday email. “We are confident these standards will be upheld, and that they will continue to keep Virginians, their families and their communities safe.” 

The new safety regulations were first proposed by Northam, who criticized the federal Occupational Safety and Health Administration’s decision not to adopt nationwide standards. The rules mandate social distancing and require some employers — including “medium-risk” businesses such as restaurants, retail stores and factories — to develop infectious disease response plans.

All businesses are required to notify employees within 24 hours if a coworker tests positive for the virus and ban workers with known or suspected cases from returning to the job for at least 10 days after they were first diagnosed, along with several other new mandates.

The maximum penalty for violating the rules is set at $13,000, but “willful and repeat” violations could result in fines up to $130,000. The rules include whistleblower protections that bar retaliation against employees who raise complaints either publicly or with the Department of Labor and Industry.

Virginia made national headlines for becoming the first state in the country to enact COVID-19 safety rules, which it passed over strong objections from business owners and outspoken support from labor unions and other advocates. 

But Courtney Malveaux, an employment attorney who formerly served as the state’s labor commissioner and sits as an industry representative on the Safety and Health Codes Board, said it was “very predictable” that the regulations were challenged by business owners. 

The board passed the rules after four full days of virtual meetings held over the course of three weeks. Malveaux, like the plaintiffs in the case, said that period only included a few days for business owners to submit written comment.

“In this case, any chance of real engagement went out the window,” he added on Tuesday. “It’s just an edict. You don’t have the buy-in, and you have a lot of confusion and stress in the employer community.”

The suit argues that many of the regulations are inconsistent. Malveaux said there’s specific concern that the rules don’t ban employees from coming into work if they’ve had close contact with a known infection, but do require workers with suspected symptoms — which can include a cough or headache — to stay home for at least three days until after they recover.

But labor advocates had argued for months that Virginia needed to enact clear, enforceable standards as it loosened its COVID-19 restrictions. State regulators received more than 3,000 workforce safety complaints by May 1, including from workers at two major chicken processing plants, where almost one in five employees tested positive for the virus. 

Some complaints came from a division of the Virginia Department of Health, whose employees reported they were being asked to inspect health care facilities without being provided protective equipment.

The Northam administration has successfully defended at least 15 lawsuits against the governor’s executive orders during the pandemic.

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Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.