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First-in-Nation Worker Virus Safety Rule Adopted in Virginia (1)

July 15, 2020, 7:51 PMUpdated: July 15, 2020, 9:54 PM

A Virginia regulatory panel has approved an emergency temporary standard that requires employers to establish coronavirus protections plans, making the state the first in the U.S. to enact such a rule during the pandemic.

The rule, which the Virginia Safety and Health Codes Board approved Wednesday by a 9-2 vote, is slated to take effect the week of July 27, once it is published in a Richmond newspaper, as required under state law. Covered employers will then have 30 days to train or notify workers about methods for avoiding coronavirus infections and to provide protective gear and equipment. The temporary rule will remain in effect for six months unless it’s replaced by a permanent regulation.

“We understand the emergency nature of this and we are committed to getting this fully in place as soon as possible,” Virginia Labor Commissioner Ray Davenport said after the rule’s approval.

Oregon is the only other U.S. state to have started drafting a virus protection rule, setting a target effective date of Sept. 1. Governors in Michigan and several other states have used executive orders to mandate workplace protections.

States are taking action as leaders of the federal Department of Labor and its Occupational Safety and Health Administration have repeatedly said they have no intention of proposing a nationwide emergency rule to protect workers against the coronavirus. Instead, U.S. Labor Secretary Eugene Scalia has favored an approach that includes cooperating with other federal agencies to issue guidance and enforcing a provision of federal occupational safety law that requires employers to maintain workplaces that are free of known hazards.

Congressional Democrats have tried to add language to coronavirus relief laws that would have forced OSHA to issue a federal emergency temporary standard, but Republicans have thwarted those efforts. In June the U.S. Court of Appeals for the District of Columbia Circuit rejected the AFL-CIO’s request for the court to compel OSHA to issue an emergency temporary standard.

Fine Print

The Virginia standard will require employers with 11 or more workers to comply with the rule’s provisions or face citations from Virginia Occupational Safety and Health, the state’s workplace safety enforcement arm. Maximum fines range from $13,494 for a serious violation to $134,937 for a company that willfully ignores the mandates.

The standard classifies industries and jobs as having a high, medium, or low risk of exposing workers to coronavirus infection.

High-risk industries include health care, emergency responders, mortuary services, and medical transportation. Among the medium-risk industries are meat processing, commercial transportation, schools, restaurants, theaters, and grocery stores.

High- and medium-risk employers will have 60 days from the rule’s effective date to develop an infectious disease preparedness and response plan. Employers will be required to perform a hazard assessment based on their risk category that includes analyzing the tasks required of workers’ roles in the workplace.

Labor advocates on the 14-member board pressed for cutting the 60-day period in half but failed to sway a majority to approve the change.

“It seems like a lot of time for things to be kicking in,” said board member Millie Rodriquez, a union safety director.

Businesses considered to be low risk are those where employees aren’t expected to encounter members of the general public and can work six feet or more apart from other workers.

The state regulatory board voted on June 24 to enact the standard, but didn’t finalize the rule’s specific language or set an effective date until Wednesday. Work on a permanent rule could start later this month, according to Jay Withrow, director of the Division of Legal Support for Virginia Occupational Safety and Health.

The board spent nearly 24 hours spread across three meetings discussing the rule’s proposed text.

Disclosure Protections

The board approved provisions Wednesday that would make it illegal for employers to discipline workers for talking with reporters about workplace virus issues or for posting their concerns on social media sites.

The panel also signed off on a requirement that employers in high-risk industries ensure mental health-care is available to employees suffering from workplace stress.

Much of the board’s early discussion focused on a provision that gives employers the option of using guidance issued by the federal Centers for Disease Control and Prevention as the basis for their protective programs. Many of the rule’s supporters on the board expressed concern that CDC guidance often recommends actions employers could take, instead of ones they must take, which the members feared could hinder efforts to enforce safety plans linked to the federal guidelines.

The CDC provision was ultimately approved after state officials assured board members that Virginia regulators would require employers that follow the federal guidance to enact even those provisions that CDC considered optional.

The rule also allows universities and public school districts to comply by having their re-opening plans approved by the State Council for Higher Education for Virginia or the Virginia Department of Health.

(Updated with additional reporting throughout.)

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

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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