Virginia’s Covid-19 Worker Safety Rule Seen as National Model

Industry attorneys increasingly point to Virginia’s permanent rule protecting workers from on-the-job Covid-19 infections as an ideal model for a nationwide emergency regulation.

Several provisions in Virginia’s standard, the first permanent occupational safety regulation in the U.S. to address virus-related hazards, make it preferable for employers compared with California’s temporary rule, said Karen Tynan, a shareholder with Ogletree Deakins in Sacramento, Calif.

Tynan and other management-side attorneys say the Virginia rule could provide a template for an emergency temporary standard from the federal Occupational Safety and Health Administration because it’s a far less rigid framework. Virginia’s model set employer compliance requirements based on a job’s exposure risk, Tynan noted, rather than imposing mandates on industry regardless of the likelihood of exposure, as California did.

“My thought is that the federal standard will be like the Virginia rule,” said Travis Vance, a partner at Fisher Phillips LLP in Charlotte, N.C. “California’s standard has a lot of difficult things to comply with. I think a lot of employers would be taken aback at the resources they would have to pour into complying.”

Virginia’s permanent rule, which followed a temporary measure enacted last year, hit the books Jan. 27, less than a week after President Joe Biden signed an executive order instructing federal OSHA to consider whether a nationwide Covid-19 rule is needed. The agency has until March 15 to issue a rule, if it determines it’s warranted.

Virginia’s rule generally requires employers to assess coronavirus risks to their workers and to follow recommendations from the Centers for Disease Control and Prevention and state health regulators as if they were mandates.

Practitioners view the Virginia standard as preferable for industry because it categorizes workplaces according to high, medium, and low hazard levels and imposes different requirements based on those assessments; it also doesn’t potentially require an employer to set up an in-house testing program, nor does it dictate personnel policies.

High, Medium, or Low

Under Virginia’s system, high-risk workplaces include health-care providers that treat Covid-19 patients and prisons, while the medium-risk category features industries such as meat processing, transportation, and retail, along with schools.

Low-risk employers are those with jobs that have minimal contact with other employees and the general public, such as in an office building where social distancing practices are observed.

High-risk worksites and most medium ones must implement a written infectious disease preparedness and response plan. Medium-risk workplaces with 10 or fewer workers and employers at low risk are spared from that mandate.

California, by contrast, has long required employers to have a written injury and illness prevention program.

The state’s temporary Covid-19 rule, enacted Nov. 30, extended the existing prevention program to cover virus risks. Mandates include identifying activities that could endanger workers, implementing a screening process to detect ill employees, and making physical changes to buildings to protect workers.

Health-care employers weren’t covered by the rule because California already required them to prevent the spread of airborne diseases.

Adapting to Guidance

The Virginia rule is best positioned to keep up with changing recommendations from the CDC, Tynan said, because it’s written so that if the CDC changes its guidance, the revision is incorporated into the rule.

The California measure references California Department of Public Health guidance. If the department revises the guidance, it could take an executive order from the governor to incorporate the change into the emergency rule, Tynan said.

Parts of the California rule that have raised considerable objections from employers are requirements for employer-provided testing programs and provisions that employers believe deal with wage and hour issues, not safety, Vance said. The Virginia standard doesn’t have similar requirements.

The California standard says that if three or more workers are found to be infected within a 14-day period, the employer must provide at least weekly tests to workers until the workplace goes without a new infection for 14 days.

It also sets stricter testing mandates if a worksite has 20 or more infected workers within 30 days. And employers must provide twice-weekly testing, or more frequently if recommended by the local health department, until no new cases are detected for 14 days.

Virginia requires employers to notify their local health department if two or more workers are discovered to be infected over a two-week span. But it leaves it up to the state health department to decide what manner of testing is needed.

The Wage-Hour Argument

Virginia’s rule doesn’t address sick leave or pay—another major difference.

The California rule calls for workers who take sick leave for suspected or diagnosed Covid-19 infections to be paid and maintain their job status when they return. Employers have challenged these provisions in public hearings and in court, arguing that California’s workplace safety agency exceeded its authority by regulating wage and hour issues.

Employer coalitions representing retailers, small businesses, and agriculture are challenging the California rule in state superior court on several grounds, including the wage and hour objections and what plaintiffs described as limited opportunities to comment on the rule before it was enacted. A judge hasn’t ruled on the complaint.

Virginia employers challenged their state’s rule in September, when it was introduced as an emergency temporary measure, citing limited chances to discuss it with state officials before it took effect. But the temporary rule expired on Jan. 26 without a judge’s decision, and no lawsuit has been filed objecting to the permanent measure.

If federal OSHA were to include pay and sick leave provisions in a nationwide rule, it could be challenged on the grounds that compensation issues were outside OSHA’s jurisdiction, Vance said.

Biden’s nominee for U.S. labor secretary, Boston Mayor Marty Walsh, didn’t take a position during his Feb. 4 confirmation hearing on whether federal OSHA should impose a nationwide virus rule, though he did call for hiring additional safety inspectors.

Multiple Democratic senators called for a rule during the hearing, including Virginia’s Tim Kaine, who advocated for OSHA to follow his state’s example.

“I think it’s working well by all accounts,” Kaine said. “It was very responsive to the needs of people who were really, really worried whether they could safely go to work.”