Regulators want to extend Virginia’s expiring pandemic workplace safety rules

By: - January 11, 2021 12:01 am

Brandon Meister prepares a Moscow Mule drink for a carry out order at Mellow Mushroom in Richmond’s Carytown neighborhood on May 16, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)

Virginia was the first state in the country to mandate emergency workplace precautions against COVID-19 this summer. Now, with the temporary rules set to expire, state officials are weighing whether to make them permanent.

The state’s Safety and Health Codes Board is scheduled to take up the issue during a meeting Tuesday, though officials are preparing for multiple days of discussions before making a final decision on the far-reaching standards, which govern social distancing, masks and an array of other pandemic-safety measures.

Industry leaders broadly oppose the extension while labor groups and state officials responsible for enforcing the rules say they should remain in place until the end of the pandemic.

“The department is still of the opinion that COVID-19 poses a danger to employees and employers and that a standard to replace the emergency temporary standard is necessary for now,” said Jay Withrow, a director at the Virginia Department of Labor and Industry, during a meeting on the rules late last year.

He said the department has fielded nearly 10,000 workplace complaints since the pandemic began, most of which were resolved through informal investigations after employers voluntarily complied with rules surrounding masks, social distancing and sanitation.

The department opened 94 formal investigations last year, most of which involved employee deaths, hospitalizations or workplaces where informal inquiries didn’t yield voluntary compliance. Of those, 43 are still in progress and 26 resulted in violations and fines, according to statistics presented to members of the Safety and Health Codes Board.

The department has not responded to a request for information detailing those violations and the fines that were assessed, but numbers compiled by regulators show most of the inspections focused on the health care and manufacturing industries.

Virginia becomes first state to mandate COVID-19 precautions in all workplaces

The permanent rules proposed by the Department of Labor and Industry are largely identical to the temporary rules that went into effect in July and revisions generally reflect changes to Centers for Disease Control guidance. If approved, the rules would then go to Gov. Ralph Northam, who initiated the temporary standard and celebrated its passage, for final review.

Broadly, the regulations mandate face coverings for employees in customer-facing positions or when social distancing isn’t possible, daily sanitization of common areas, easy access to handwashing facilities and hand sanitizer and notifications to employees within 24 hours if a coworker tests positive for the virus. They also set a timetable for when employees who are infected or suspected to be infected with the virus can return to work.

The rules set more stringent requirements for jobs deemed medium, high or very high risk, including training about the regulations and daily screenings for the virus at the beginning of each shift.

While the new standard would technically be permanent, the new rules would require the Safety and Health Codes Board to meet when Gov. Ralph Northam declares an end to the state of emergency, at which point the board would consider whether they should be repealed.

Virtually every major Virginia business group has filed comments opposing the permanent standard, as they did when the temporary rules were debated in July. They call the measure overly burdensome, expensive and unproven.

“Now is not the time to impose a permanent standard,” wrote the Virginia Business Coalition, which represents 33 industry groups. “Why adopt a permanent standard when we’re beginning to see the rollout of vaccinations?”

The coalition specifically argued that it is unreasonable to require businesses like restaurants to develop an infectious disease response plan, that daily sanitation rules are impractical in 24/7 operations with overlapping shifts and that whistleblower protections for employees who report unsafe conditions should not extend to workers who discuss their concerns with the news media or on social media.

“The last thing business owners need as they rebuild their businesses during this critical time is a permanent one-size-fits-all government regulation,” wrote Nicole Riley, the state director of the National Federation of Independent Businesses, arguing small business owners are already contending with an unprecedented economic crisis that has already forced many to scale back operations or close.

Meanwhile, labor groups urged adoption of the new standard, arguing they’ve proved essential in addressing unsafe workplace conditions faced by essential workers.

“There is no way out of this pandemic without a permanent standard to protect workers, our families, and our communities across the commonwealth,” wrote David Broder, president of Service Employees International Union Virginia 512. “Without a permanent standard, we will not be able to protect those on the job, or get those who are without work back on the job.”

In response to comments from business groups, officials wrote they recognize that complying with the temporary standard can pose a difficulty to employers, but argued that ultimately, the rules benefit both employers and employees.

“If customers don’t feel safe because employees don’t feel safe, it will be hard for a business to prosper in a situation where there is ongoing community spread,” wrote the Department of Labor and Industry.

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.