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Virginia Could Be First State to Enact Worker Virus Protections

June 24, 2020, 9:21 PM

Virginia is moving toward becoming the first state to enact an emergency temporary rule protecting most workers from the coronavirus.

The Virginia Safety and Health Codes Board in Richmond on Wednesday voted 9-3 to approve a resolution declaring Covid-19 to be a “grave danger” to workers and that there’s a need for an emergency temporary standard.

The state’s Department of Labor and Industry proposed wording for the rule, but the board adjourned after agreeing to consider the text at a later meeting. Once enacted, the rule would stay in effect for at least six months or until it’s replaced by a permanent rule.

Virginia is among 22 states that have their own occupational safety and health agencies covering private workers as well as state and local government employees. The states are allowed by federal law to enact regulations as long as the requirements are at least as effective as federal Occupational Safety and Health Administration’s rules.

While other states have enacted coronavirus rules to cover specific groups of workers—such as Oregon’s temporary rule for agriculture worker housing—Virginia would be the first state to enact a rule covering most workers.

Federal OSHA administrator Loren Sweatt and Secretary of Labor Eugene Scalia have said repeatedly there’s no federal plan to issue a rule specifically covering the coronavirus.

Governor Called for Rule

Virginia’s labor department proposed the rule at the request of Gov. Ralph Northam (D), who’s also a pediatric physician. In a May 26 executive order, Northam said the rule “must address personal protective equipment, sanitation, record-keeping of incidents, and hazard communication.”

Board member Courtney Malveaux, who was Virginia’s labor commissioner from 2010 to 2013 during a Republican administration, objected to declaring a need for a rule saying the state hasn’t shown additional regulations are needed.

“We have not really used the tools we have,” said Malveaux, now a principal with the Jackson Lewis P.C. law firm in Richmond.

The proposed rule would classify industries and jobs as high, medium, or low risk of exposing workers to Covid-19.

High-risk industries would 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.

Businesses considered to be low risk would be those where employees weren’t expected to meet with the general public and could work six feet or more from other employees.

Based on the risk, employers would be expected to do hazard assessment that included looking at the tasks positions require.

The rule also sets requirements for personal protective equipment, testing workers, allowing ill workers to stay away from work without risking their employment, when work sites must be disinfected, and minimum air circulation requirements.

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; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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