Source: ASAE: The Center for Association Leadership
The Nation’s First Coronavirus Workplace Safety Rules
On Wednesday July 15, Virginia’s Department of Labor and Industry’s Safety and Health Codes Board (the Department) announced the first coronavirus-related workplace safety regulation in the United States (Workplace Rules). This mandate follows an executive order issued by Governor Ralph Northam in late May that directed the Department to create infectious disease regulation. The Workplace Rules will require businesses under the jurisdiction of the Virginia Occupational Health and Safety Administration to implement safety measures to protect those who have been exposed to and infected by COVID-19 at the workplace. The Workplace Rules will likely come into force toward the end of July once they are published in a newspaper of general circulation. They will then remain in effect for a period of six months, after which they could become permanent if adopted through legislative enactment.
As the first regulations of their kind, the Workplace Rules may have significant implications for the Virginia business sector. For example, while the federal Occupational Safety and Health Act mandates that employers comply with a general duty to provide employees a “place of employment… free from recognized hazards that are causing or are likely to cause death or serious physical harm,” the details of how to meet that general duty have been advisory in nature. As noted in Pillsbury’s client alerts of April 17, 2020 and May 20, 2020, the U.S. Occupational Safety and Health Administration (OSHA) has issued guidance documents on measures employers should take to protect employees from the virus that causes COVID-19, rather than publishing specific regulatory requirements. Critics assert that those recommendations are not sufficient to ensure protection of workers. The Virginia standard, however, prescribes enforcement penalties of up to $130,000 for non-compliance. In addition, the standards in these rules may have broader economic implications as they may prompt other states to follow suit. It has been reported that Oregon is already expected to implement a similar set of rules by the end of July.
Some industry groups argue that these measures are unnecessary and burdensome given existing federal guidelines, while others fear that they will only exacerbate the current financial challenges caused by COVID-19 by raising the cost of doing business in Virginia and harming the commonwealth’s economic recovery. Nicole Riley, Virginia’s director of the National Federation of Independent Business, has highlighted these concerns, stating that “[w]ith this vote, Virginia’s repeated ranking as a top state for business has evaporated, we won’t be able to compete with other states, and our economic recovery will be put in low gear.”
Key Components of these New Measures
While the details of the Workplace Rules have not yet been published, the key elements will include:
The Workplace Rules will also contain antidiscrimination provisions prohibiting employers from retaliating or discriminating against workers who voluntarily wear their own personal protective gear or express concerns about safety measures, including in the workplace, to government agencies, or to the public. These provisions are in addition to Virginia’s whistleblower protection law, enacted July 1, which codifies a private right of action for retaliation based on an employee’s reporting of any violation of federal or state law or regulation. Va. Code § 40.1-27.3(A)(1).