Virginia becomes first state to mandate COVID-19 precautions in all workplaces

Social distancing and other precautions against COVID-19 will soon be mandatory in workplaces around Virginia under emergency pandemic safety regulations finalized Wednesday.

The new rules, proposed by Gov. Ralph Northam and adopted by the state’s Safety and Health Codes Board over strenuous objections from business groups, make Virginia the first state in the country to pass comprehensive safety rules for employers.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Northam said in a statement, criticizing OSHA’s decision not to adopt nationwide standards. “In the face of federal inaction, Virginia has stepped up to protect workers.”

The new rules will go into effect as soon as they are publicly published in a newspaper of general circulation, which the Department of Labor and Industry said they expect to occur the week of July 27. The department said it also plans to offer resources explaining the new rules before they go into effect and offer consulting services to help businesses comply.

In addition to mandating social distancing, the rules require all employers to:

• assess their workplaces for potential exposure to the virus,
• mandate face coverings for employees in customer-facing positions or when social distancing isn’t possible,
• sanitize common areas daily,
• provide easy and frequent access to handwashing and hand sanitizer,
• notify employees within 24 hours if a coworker tests positive for the virus, and
• bar employees known or suspected to be positive for COVID-19 from returning to work for for at least three days after symptoms subside, at least 10 days after they were first diagnosed or until they test negative for the virus.

[Update: The state has posted a copy of the finalized regulations here.]

The regulations set more stringent requirements for jobs deemed medium, high or very high risk.

High and very high risk jobs are defined as those in which there is a high probability an employee will come in contact with people known or suspected to be infected with the virus, such as health care workers and first responders.

Medium risk jobs are defined as those that “require more than minimal occupational contact” with other employees or the general public, such as workers in settings like restaurants, grocery and retail stores, correctional facilities, factories and plants.

For workers in those two categories, employers would be required to provide training addressing the regulations, screen employees for the virus at the beginning of each shift and provide appropriate personal protective equipment, including appropriate respiratory protection.

The maximum penalty for violating the rules is set at $13,000, but “willful and repeat” violations could result in fines up to $130,000. The rules include whistleblower protections that bar retaliation against employees who raise complaints either publicly or with the Department of Labor and Industry.

Labor unions and other advocates lauded the new regulations, saying they hope other states follow suit. “This is a victory for working people across Virginia,” said Rebecca Reindel, an OSHA expert with the AFL-CIO, which has been unsuccessfully pushing for workplace protections at the federal level. The organization’s Virginia director, Doris-Crouse Mays, called it “an essential move towards boosting Virginia from the bottom-most ranking of 51st for workers.”

The Virginia Business Coalition, meanwhile, complained Northam’s administration “ignored almost every suggestion we gave” and jeopardized the state’s business-friendly reputation by backing the requirements.

“Perhaps some will feel pleased Virginia is the first to impose a state-wide pandemic workplace mandate promoted by labor groups, but ignoring the harm it will cause the state’s businesses is shortsighted,” Jodi Roth, a lobbyist for the Virginia Retail Federation, said in a statement. “It sends a message to Virginia businesses that the state doesn’t value their contributions and isn’t listening to their concerns.”

Throughout the process, business groups have argued workplace regulators already have the authority to address unsafe working conditions, but the state has said their power to intervene is limited under existing rules. Nationwide, OSHA has issued just one citation related to the virus.

Since the pandemic began, the state has generally responded to employee complaints by conducting informal “phone/fax investigations,” in which inspectors forwarded employee concerns to employers and asked them to provide documentation showing they’d addressed the unsafe conditions. To date, employers have reported 13 employee deaths and 26 hospitalizations to the Department of Labor and Industry.

The board spent four full days in virtual meetings held over the course of three weeks debating, amending and discussing the recommendations.

In the end, most of the changes adopted were relatively minor, but one proposal to allow businesses a choice of complying with the new state regulations or relevant Centers for Disease Control guidance for their industry drew strong opposition from labor groups, who argued CDC guidelines are ever changing and in many cases weaker than the new Virginia rules.

The debate was resolved swiftly and unanimously during Wednesday’s meeting with the adoption of compromise language proposed by Northam’s administration that allows the CDC guidance to be used as a stand-in only if it provides “equivalent or greater protection” than the state’s rules — a decision met by dismay among business groups and celebration from labor representatives.

“The underlying genesis of this standard is that federal authorities were not stepping up to create enforceable standards,” said Jason Yarashes, an attorney with the Legal Aid Justice Center, which advocated for the protections. “We commend the governor, the administration, and the board members for filling that void with this key amendment to ensure the highest level of enforceable workplace standards for the commonwealth’s workforce during this historic pandemic.”