Virginia Cracking Down on Workplace Safety, Filling OSHA Void
The Commonwealth is the first state in the nation to issue regulations.
My home state of Virginia is about to enter into Phase 3 of its re-opening process. Ahead of that, it’s issuing new and controversial guidelines to businesses.
WaPo (“Virginia poised to create first pandemic workplace safety mandates in nation, as Trump labor agency sits on sidelines“):
Virginia took a big step on Wednesday toward ushering in a new set of coronavirus-era safety rules that companies would be forced to implement to protect workers from infection — a first in the country and potentially way forward for other states in the face of federal inaction.
The state’s 14-member health and safety board voted 9-3 to agree to create workplace safety rules that they would continue to work on and finalize in coming days. The emergency temporary standard was drafted by the state’s Department of Labor and Industry, under direction from Gov. Ralph Northam (D) in late May. Two members of the panel abstained.
The governor’s office said the rules were prompted in large part by the lack of enforcement from the federal agency tasked with upholding workplace safety, the Occupational Safety and Health Administration.
OSHA’s spokesperson, naturally, says that the agency is doing enough because pre-COVID regulations are sufficient. But experts seem to agree that this is absurd.
OSHA has issued only one citation in response to more than 4,000 coronavirus-related complaints, a jarring record that workplace advocates and former OSHA officials have criticized in recent weeks as a neglect of the agency’s duties.
“Millions of workers are terrified of going into jobs every day where they are not adequately protected from the coronavirus,” said David Michaels, a former OSHA head who served during the Obama administration.
“Thousands of workers have complained to OSHA, and OSHA has told them they’re on their own. . . . State governments are stepping into the void.”
My visits to businesses over the last three-plus months involve a handful of trips to the grocery store, three or four visits to Home Depot, a couple of Walmart runs, and some restaurant takeout. I finally made a Costco run yesterday. Those businesses are all taking measures that would have seemed extraordinary four months ago—and restrictions have loosened considerably in recent weeks.
Still, I consistently note workers and customers either not wearing masks—they’ve been required by order of the governor for weeks now—or wearing them in such a way that they’re doing nobody any good. You’d think managers would be enforcing the rules, but they’re not. And if they’re not doing something that obvious, I’m skeptical how diligent they are about other, more difficult, measures.
The draft of Virginia’s standard that the board will either approve or amend requires that employers develop policies for workers dealing with coronavirus-like symptoms, while prohibiting those workers suspected of having the coronavirus from showing up to work. The new rules would force companies to notify workers of possible exposure to infected co-workers within 24 hours, while also mandating physical distancing as well as sanitation, disinfection and hand-washing procedures.
That this isn’t already the norm this far into the epidemic is hard to fathom.
The regulations have drawn praise from unions, labor advocates and many workers. But they’ve also drawn sharp opposition from many businesses and industry groups, which say the new regulations are unnecessary in the face of existing guidelines from the state and federal agencies such as the Centers for Disease Control and Prevention and OSHA.
Those guidelines are recommendations, which carry fewer legal ramifications than enforceable standards do. By contrast, Virginia officials said the state’s inspectors will police the new regulations, under penalties of up to $124,000 and the threat of closure in severe cases.
Members of the board, which includes corporate lawyers, industry representatives and labor advocates, spent most Wednesday mired in technical and procedural rules.
They spent much of the morning debating whether the public should be given more time to comment on the regulation, before voting no, and then spent the afternoon approving motions that declared the coronavirus a “grave danger” to employees and employers and another an “emergency situation,” for legal purposes. They finally voted overwhelmingly to adopt the emergency temporary standard — although the specifics will be debated at another meeting.
Still, the political tension is obvious:
Many businesses said they were worried that the new rules could add a greater burden to their budgets during an already challenging time economically.
“We urge you to not add more restrictions, guidelines and regulations to an already overwhelmed business community that is struggling to remain solvent,” Richard Postle, the chairman of Blue Ridge Bread, which employs 750 workers, wrote in a public comment.
Nicole Riley, the Virginia director for the National Federation of Independent Business, said the proposal was already causing confusion. The group targeted a rule forcing businesses to classify workers according to four risk levels. The group also questioned when businesses would have to start abiding by the new rules, should they pass.
“We’re already months into covid-19, and a lot of employers have put in a lot of protocols to safeguard employees and customers,” she said. “We think this is overkill. It sets up a lot of bureaucratic red tape for business owners to comply with, when they’re already struggling with how to keep up their business and keep their employees employed.”
To the extent the new regulations are duplicative and “red tape,” one understands ownership and management’s frustration. Still, it makes sense to have uniform guidelines—and, indeed, it’s essential if there are going to be enforcement penalties applied. And I presume the “four-stage” model is similar if not identical to the one implemented by the Defense Department (and possibly the entire Federal government). If so, it’s not particularly onerous.
The pressure is coming from workers themselves, who fear their management is not doing enough to protect them.
Some worker advocates said they believe the proposals could go even further. Sarah Jacobson, an organizer with Unite Here Local 23, which works with airport concession workers, wrote in a comment that she hoped to see requirements for plastic face shields and for plexiglass between workstations.
Labor advocates say that the state approach is laudable and may soon be copied by others, but that it still falls short of a comprehensive national enforcement plan by OSHA. Some expressed fear that a piecemeal approach will allow other states to compete against neighbors in a “race to the bottom,” to offer businesses a more attractive environment at the expense of worker safety.
One could certainly imagine West Virginia being less restrictive than Virginia or Georgia and South Carolina being less restrictive than North Carolina.
Some of the stores around here have installed plexiglass dividers between cash registers while others have not. To the extent that there’s evidence that it’s significantly helpful in inhibiting transmission, it would seem a modest imposition. I’m dubious that people who already won’t wear a mask over their nose are going to wear plastic shields all day.