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.

FILED UNDER: COVID-19, Economics and Business
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    Alright, News Flash News Flash News Flash: OSHA is a sad joke, a potemkin agency that exists only so we can pretend to take workplace safety seriously. They write rules and regulations that businesses ignore when it is convenient because the agency has been gutted of inspectors to such an extent that there is almost no chance they will be caught, and if they are caught they appeal and appeal and appeal until the fines don’t even add up to a slap on the wrist. More like a tapping on the pinky with a “You naughty naughty boy. Now don’t you do that again.”

    In 35 years I saw one, ONE, OSHA inspection, and that was only because while driving by the jobsite the inspector spotted a dumb ass carpenter 4 floors up on a rolling scaffold at the edge of the building with out fall protection or guardrails. That was at 8 in the AM. The superintendent told everyone to roll everything up (frayed cords, chop saws w/o blade guards, etc etc) and to sit tight until the inspector left. Why roll it all up? Because if it’s not in use, it’s not a violation.

    The inspector took one look at 50+ carpenters sitting around with their thumbs up their asses on the suddenly very quiet job site and said, “Uh huh.” and decided to inspect every nook and cranny of that job site. I don’t know if he found anymore violations but he did manage to levy a fine to the tune of $15,000 which is what they paid all of us carpenters to sit on our asses for 6 hours.

    So James, when you say

    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.

    it is just bullshit corporate double speak, because while the words themselves make perfect sense, they have no relation to the real world. What these companies are afraid of is having somebody actually enforce the laws.

    I mean what’s the point of electing “small govt” Republicans to the federal govt if one is going to be regulated by the states anyway? Damn, that’s gonna cost a lot of money gutting 50 different agencies too. What is America coming to?

    ETA wanted to say, that was the longest work day I have ever been subjected to.

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  2. James Joyner says:

    @OzarkHillbilly: The sentence you object to is a condition one: “To the extent that ….” So, if in fact a given company is already taking the precautions outlined by the new policy, whether out of common decency or fear of liability, then having to alter the policy to jump through hoops arranged in a slightly different way would be frustrating.

    That OSHA isn’t doing its job because it lacks enough inspectors doesn’t shock me, although it’s not really what the post is about. We really have that issue across a number of regulatory agencies, including even the IRS.

  3. OzarkHillbilly says:

    @James Joyner: So, if in fact a given company is already taking the precautions outlined by the new policy, whether out of common decency or fear of liability, then having to alter the policy to jump through hoops arranged in a slightly different way would be frustrating.

    Let me repeat myself: “while the words themselves make perfect sense, they have no relation to the real world,” What they object to is “jumping thru hoops” at all, but your obeisance to the business community is duly noted.

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  4. Michael Cain says:

    The state regulations last right up until OSHA takes the state to court and says “preemption doctrine”, right? States can only regulate in an area where the feds also regulate with permission of Congress? Last year President Trump had the EPA revoke California’s permission to impose tougher air pollution standards. That case is winding its way through the federal courts now.

    I have no idea how it will turn out. I can make arguments for this particular Supreme Court going either way based on parts of their recent history.

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  5. Mister Bluster says:

    Not clear about the agency’s jurisdiction back in 1976.
    All I remember was that when I was a CETA program employee for the City of Murphysboro, Illinois Street Department and the Supervisor would give us a heads up that OSHA would be in town all the old timers on the crew would say in unison, O SHIT!

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  6. James Joyner says:

    @OzarkHillbilly: I have very little direct experience with OSHA and will defer to your decades of experience on job sites.

    The premise of this post is simply that there’s good evidence most businesses aren’t doing enough to protect workers, so the state is jumping in to regulate. Not only are workers complaining mightily by my own anecdotal experience is that even simple things like masks are being loosely enforced. The only “pro-business” aspect of the post is to sympathize with those who are in fact doing what they should be doing and now have to change their practices to comply with particulars of regulations.

  7. OzarkHillbilly says:

    @James Joyner: The only “pro-business” aspect of the post is to sympathize with those who are in fact doing what they should be doing and now have to change their practices to comply with particulars of regulations.

    Ummmm… James? The point of regulations is that businesses aren’t doing what they should be doing. If they were, there would be no reason to regulate it. Now, they might think they are doing all they need to* but obviously enough somebody disagrees.

    In all my years, the only times I saw construction companies following the safety regs like they are supposed to was on Fort Leonard Wood and that was because the Corps of Engineers were responsible AND on site every day. Inspecting everything we did and watching us like hawks to make sure we didn’t do anything stupid. Even than, I saw a guy get helicoptered out after he shot himself in the liver with an illegal bump gun (which mysteriously disappeared before the accident site got taped off for investigation) and another guy almost got killed when he rolled a man lift that had the limiters disabled. They had a whole job site meeting about safety after that one, as tho the guy who was operating it screwed up by expecting the mandated by law safety mechanism to be operational. “Bad boy, BAD BOY! Here’s your final check. See Yah!” Yeah, he was gone.

    * my experience is that they rarely do one iota more than the bare minimum and that during this pandemic 95% of them aren’t even doing that. Of course, that’s in Misery where businesses can pretty well do damn near anything they like

  8. MarkedMan says:

    In my packaging identification days I visited hundreds of plants. Many, many did not take safety seriously, sometimes to the point that I told my service reps they would not get into trouble if they told the plant manager they could only service their equipment if they took it off line and took it back to the service center. And don’t get me started on cleanliness of food processing plants. I’ll just say it is better to buy brand names and if they cost more, just eat less. And never buy anything from Sams Club. I can only speak to the one soda pop bottling plant I visited that was running their stuff and RC Cola, but it was a cockroach infested mess and from all accounts, had been for decades. I have no reason to think it was the exception as Walmart’s only goal in vendor management is price reductions.

    Many of these plants had never had a real OSHA Or FDA inspection despite laws that mandated regular visits. Why? Because ever since Ronnie Reagan the Government has been the problem. Shallow, low intellect and/or venal people have taken over the Republican Party which caters support from the business owners, who understand what is going on but actively despise their workers. What about those workers, whose votes they need? Ronnie taught them the way. “Government inspectors are just bureaucratic nags, watch while we call them up before Congress and humiliate them! By the way, look over there! Black people are looking to steal your lunch!”

  9. MarkedMan says:

    [Ignore]