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Virginia’s First-in-U.S. Worker Virus Safety Rule Takes Effect

July 27, 2020, 1:06 PM

Virginia’s first-in-the nation Covid-19 emergency worker protection rule is set to take effect July 27, according to the state’s Department of Labor and Industry.

The temporary standard requires employers covered by the department’s Virginia Occupational Safety and Health (VOSH) program, to immediately comply with guidance from the federal Centers for Disease Control and Prevention and state-issued instructions.

The standard allows employers 30 days to train workers to protect themselves from the coronavirus and 60 days to have in place an infectious disease preparedness and response plan.

While the rule is primarily seen as affecting manufacturing, agriculture, construction, retail, and service industry employees, it also covers office workers. For example, a building owner has to notify tenants any time a worker in the building is discovered to be infected and disclose which floor the sick worker was assigned to.

The standard, supported by Gov. Ralph Northam (D), was approved July 15 by the state’s Safety and Health Codes Board. As an “emergency temporary” rule, the requirements will stay in effect for six months, or less if the board passes a permanent standard. It carries fines that can exceed $130,000 for repeat and willful violations.

Jennifer L. Rose, VOSH’s cooperative programs director, said the agency won’t be mounting an emphasis program to enforce the new standard. “Inspections will be conducted per standard VOSH inspection processes,” Rose said. “Inspections are based on general scheduling, complaints or referrals.”

In Review

The swiftness of the approval process has left employers trying to figure out how the rule applies to their businesses as enforcement begins.

“We’re still reviewing what the rule contains,” said Kyle Shreve, executive director of the Virginia Agribusiness Council in Richmond.

Shreve noted that the standard often refers to the “feasibility” of prevention measures, but offers no defined threshold on when something isn’t feasible.

“Feasibility is in the eye of the beholder,” Shreve said.

Nicole Riley, Virginia state director for the National Federation of Independent Businesses in Richmond, said 30 days is a short time to decide what workers need to be educated about and then trained on.

Rose said VOSH hopes to answer questions about the rule with compliance information the agency began releasing July 24.

Business groups are also raising questions about the standard’s benefits requirements. Riley cited the mandate for employers to pay for workers’ Covid-19 testing, needed in order to return to work after an infection, even though employers and workers may not have insurance to cover the costs.

The U.S. Chamber of Commerce in a July 22 commentary said that although the standard prohibits employees who are known or suspected to have contracted Covid-19 from returning to work until there is no longer an infection, the standard doesn’t explain how the employee is to be paid for this time.

Federal compensation programs are set to expire while Virginia’s rule is in effect, the Chamber said.

States Step Up

Virginia, whose executive offices and legislature are controlled by Democrats, began pursuing the standard (§16VAC25-220) as the federal Occupational Safety and Health Administration repeatedly declined to enact an emergency rule.

Secretary of Labor Eugene Scalia has said federal OSHA’s general duty clause law and specific rules for protective gear and respiratory protection, are more effective than a Covid-19-specific rule.

Some governors, such as those in California, Michigan, Nevada, and New York, have used executive orders to establish worker and public health protections. Oregon has begun drafting an emergency rule expected to be issued by Sept. 1.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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