The coronavirus spreads quickly, and so do government regulations. That was true recently in Virginia, where the state implemented new workplace safety requirements.
“It’s been a very fast-moving train,” Courtney Malveaux said during a webinar for the Virginia Retail Federation last week. “It moved so fast that, frankly, a lot of stakeholders got caught unaware. There was no real public comment period. It was rushed through as an emergency standard.”
Malveaux should know. He’s a former Virginia labor commissioner who serves on the state’s Safety and Health Codes Board, which hurriedly enacted the emergency standard. A practicing attorney with JacksonLewis in Richmond, Malveaux advises business clients on compliance issues.
On this, he advises compliance: “The goal is getting back to work in as safe a manner as possible, and we’ve got to make this work,” he said.
Standard could burden smaller businesses
Matt Schewel, director of store operations for Home Furnishings Association member Schewels Home in Lynchburg, Va., found that many of the regulations codify the federal OSHA guidelines that his business already follows. “Personally, I feel it is good to have specific instructions on how to handle COVID cases and return-to-work policies,” he said.
At the same time, he thought some of the details could burden smaller businesses that don’t employ HR specialists who can digest the 35 pages of rules and compile the hazard assessments and preparedness and response plans required.
The standard sets some requirements for all employers but also directs them to claim a risk category: Low, Medium, High or Very High. It suggests that retail stores should be in the Medium Risk group. Additionally, it mandates that employers create risk assessments for all job tasks in their businesses. Jobs that don’t routinely bring workers into contact with the public and allow for social distancing would be considered low risk. Schewels only classifies members of its delivery crews as medium risk. It considers everyone else to be low-risk. The risk levels trigger different requirements for training and risk-reduction strategies.
The standard also spells out practices for responding if employees test positive for COVID-19 – even if infection likely occurred outside the workplace. It includes notification requirements, protocols for disinfecting and checking for symptoms potentially presented by other employees.
Preparedness and response plans required
Businesses at a medium risk level with more than 10 employees are required to develop and implement an Infectious Disease Preparedness and Response Plan by Sept. 25, with one person assigned responsibility for administering it. Employee training is also required within 30 days. And there is a nondiscrimination clause. No action can be taken against workers who report concerns, use personal protective equipment that isn’t mandated or who refuse to work because of safety concerns.
Refusing to work, however, must be made on “objectively reasonable” grounds, Malveaux said, and the employer must be given a chance to address concerns before acceding to a refusal to work.
As a member of the Safety and Health Codes Board, Malveaux said he did not support the temporary standard, faulting some of its provisions as too vague or burdensome. But he said the regulations create an opportunity for employers to collaborate with employees on sensible workplace procedures that can benefit everyone. Yet, “the only one who is responsible for compliance is you,” he said. “You’re the employer.”
The standard expires automatically in six months or upon repeal or expiration of the governor’s State of Emergency. But it also could be converted to a permanent standard, perhaps dealing more generally with infectious diseases.
Businesses weren’t allowed a voice in drafting the temporary standard, Malveaux noted. They should insist on having a say about long-term rules based on their experiences during this crisis.
Other states could follow Virginia
Virginia operates its own occupational safety and health program with federal authorization. It became the first state to launch sweeping workplace standards related to COVID-19 – but it probably won’t be the last.
About half the states take responsibility for workplace safety, while the rest rely on the federal Occupational Safety and Health Administration. The federal agency enforces workplace standards that is says “may apply” to COVID-19 but has not set specific standards during the current crisis. Democrats in Congress say they will push for COVID standards that would take effect in tandem with broad COVID-related liability protection sought by business groups and Republicans in Congress.
Virginia and other states that run their own workplace safety programs can set standards that are stricter than federal OSHA rules. Some states may follow Virginia’s lead.
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