Virginia Set to Adopt Emergency Regulations Related to Workplace Safety and COVID-19

Date: June 30, 2020

Organized labor and other interest groups have pushed Governor Northam and the Virginia Safety and Health Codes Board to adopt an emergency regulation that would set out additional requirements for Virginia employers related to workplace safety due to the coronavirus. The Board met on Wednesday, June 22nd in a hurried process which barred any public testimony at the meeting.

The Board determined that COVID-19 presents a public emergency and a workplace hazard and they approved a process to implement the new emergency regulation with the intention of making it a permanent standard within the next 6 months after additional public comment.

The Board did accept written comments during a brief 6-business day window. You can read NFIB Virginia’s comments HERE. We also submitted comments as part of a 27-member business coalition which you can read HERE.

Over 3,300 comments were submitted to the Board with just 24 hours to review them before their meeting. After the meeting ran for close to eight hours because of technical difficulties, motions to delay approval, and confusing recommendations from Staff, the Board agreed to meet again for final consideration of the standards which may include amendments to the proposal. The meeting is set for Monday, June 29 at 9:15am and may be accessed HERE for the livestream. If the Board approves the standards, they could go into effect by July 15, 2020.  You can view the proposed emergency standards HERE

In our comments, NFIB made the following points to voice our strong objections about placing additional burdens on Virginia businesses:

  • It is unreasonable to apply a set of broad “one size fits all” COVID-19 regulations to all employers and employees when they are likely to change because of the science on the virus is evolving.   
  • These regulations should not be approved through a rushed emergency process and without enough public participation in the meeting of the Health & Safety Codes Board
  • While Virginia small business owners have been implementing safety and sanitation controls for close to 4 months now, the Department has had the authority to enforce noncompliance under current rules and regulations with recent clarification from OSHA in May.
  • The proposal is deeply flawed and should be rejected.  Our coalition found at least 50 specific issues within the proposal that are confusing, beyond the scope of OSHA and nothing more than a litigation trap.  Examples include 1) identifying risk factors for each employee not by task; 2) erecting floor to ceiling partitions even for low risk; and 3) reevaluating all those employee risk factors should the local community—outside the workplace–experience a moderate or substantial spike in disease transmission.

The Department should focus on developing training curriculum for employers as well as assisting employers prepare COVID-19 infectious disease preparedness and response plans.

WHAT YOU CAN DO NOW

NOW is the time to have your voice heard! Contact the following Virginia Safety and Health Board Members with your concerns. You are welcome to use the following example of an email pointing out your main concerns:

Hello.  I am a small business owner in Virginia, and I oppose the draft VDOLI COVID-19 draft regulations and have serious concerns about the process and lack of public participation in their development.  

Four months into the pandemic, I have implemented industry-specific guidance from the Governor, the CDC, and OSHA to ensure physical distancing, conduct extensive sanitization, alternate employee shifts, and much more. I want to keep my employees safe because I care about their welfare.

Applying “one size fits all” COVID-19 regulations on all employers and employees is unreasonable especially when guidance is continually changing as we learn more about the virus.

It especially concerns me that these emergency regulations are being rammed through without any reasonable opportunity for public input.  How is 6 business days enough time for small businesses to understand and respond to the Board about this proposal?  And how do you as Board members have enough time to review the public’s comments when you were only given 24 hours to do so?  

As a Virginia taxpayer and job creator, I hope you will reject the proposal and provide a chance for small businesses’ voices to be heard.

My company takes its responsibility in protecting its employees seriously.  The VDOLI COVID-19 draft regulations will only make a difficult situation worse for employers and employees.  We encourage you to focus your time and attention on bad actors that knowingly violate COVID-19 guidance.

Mr. Louis J. (“Lou”) Cernak Jr.
Term Expires: 06/30/22
Labor Representative of the Boiler and
Pressure Vessel Industry
[email protected]

Mr. John D. Fulton
Term Expires: 06/30/22
Employer Representative of the Boiler and
Pressure Vessel Industry
[email protected]

Ms. Anna E. Jolly
Term Expires: 06/30/20
Industrial Representative Knowledgeable in
Chemical and Toxic Substances
[email protected]

Mr. Courtney M. Malveaux
Term Expires: 06/30/21
Representative from Construction Industry
Employers
[email protected]

Mr. Michael. A. Luce
Term Expires: 06/30/24
Representative of an Insurance Company
[email protected]

Mr. Travis M. Parsons
Term Expires: 06/30/22
Representative from Labor in the Construction Industry
[email protected]

Mr. Kenneth W. Richardson, II
Term Expires: 06/30/20
Representative for the General Public
[email protected]

Ms. Milagro (“Milly”) Rodriguez
Term Expires: 06/30/20
Labor Representative Knowledgeable in
Chemical and Toxic Substances
[email protected]

Mr. Charles L. (“Chuck”) Stiff
Term Expires: 06/30/24
Representative for Industrial Employers
[email protected]

Mr. Thomas A. Thurston
Term Expires: 06/30/22
Representative for Labor in the
Manufacturing Industry
[email protected]

Ms. Tina Hoover
Term Expires: 06/30/22
Representative for Agricultural Employees
[email protected]

Mr. Phil Glaize
Term Expires: 06/30/22
Representative for Agricultural Employers
[email protected]

Dr. M. Norman Oliver, MD, MPH (Ex Officio)
Commissioner Virginia Department of Health
Represented by: Dr. Dwight Flammia, PhD
State Public Health Toxicologist,
Div. of Environmental Epidemiology
[email protected]

Mr. David K. Paylor (Ex Officio)
Director Department of Environmental Quality
Represented by: Mr. Jerome Brooks, Director of
Water Compliance
[email protected]
[email protected]

NFIB VIRGINIA IN STATE AND NATIONAL MEDIA

Marketplace on NPR reports on the possibility of Virginia becoming the first state to create workplace safety mandates, noting that NFIB members believe the “new rules are too prescriptive”. State Director Nicole Riley said, “They’re trying to apply a one-size-fits-all approach. And they already have the authority to be able to go after bad actors.” This story ran on stations around the country.

The Virginia Mercury reports a similar story, noting that business groups have argued that existing regulations and guidelines are sufficient: “Currently, Virginia businesses must follow existing OSHA statutes and regulations to assess their workplaces and determine the existence of hazards and provide necessary PPE to workers including respirators and eye and face protection…They must maintain proper sanitation for their facilities,” said Riley.

The Washington Post reports on proposed workplace safety mandates in Virginia, highlighting State Director Nicole Riley who is working with a business coalition to prevent the state from implementing the regulations: “We’re already months into COVID-19, and a lot of employers have put in a lot of protocols to safeguard employees and customers. 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.”

Related Content: NFIB in My State | State | Virginia

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