Virginia Enacts First-Of-Its-Kind Regulation To Protect Workers From Coronavirus

The state said it acted because the Trump administration is sitting on its hands.

Virginia leaders approved a new set of rules Wednesday that employers throughout the state must follow to protect workers during the pandemic ― a step Democratic Gov. Ralph Northam said he was taking because the federal government has done so little to keep workplaces safe from the coronavirus.

The Virginia regulation requires that employers follow social-distancing guidelines and provide masks to workers who deal with customers. In workplaces where it isn’t possible to spread out, employers will have to provide hand sanitizer or access to sinks, and regularly clean work surfaces. 

Employers must notify workers within 24 hours when a coworker has tested positive for COVID-19. Anyone believed to have the virus must stay off the job for at least 10 days, or until they’ve tested negative two times. And workplaces in higher-risk fields must develop infectious-disease response plans if they haven’t already.

Many of the requirements sound like the commonsense recommendations coming from the Centers for Disease Control and Prevention or the Occupational Safety and Health Administration, but with one major difference: Employers are legally bound to follow them, subject to inspections and fines.

Workplace safety advocates have been calling on OSHA, which is part of the Department of Labor, to enact emergency regulations to protect workers during the pandemic. So far it has refused to put any new rules on the books, and appears reluctant to wield the powers it already has. A Labor Department spokesperson confirmed to HuffPost on Wednesday that so far it has issued only one safety citation against an employer related to coronavirus.

Northam said in a statement that the Virginia rules were being implemented “in the face of federal inaction.”

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” he said.

Virginia Gov. Ralph Northam directed state officials to develop the new, enforceable workplace rules.
Virginia Gov. Ralph Northam directed state officials to develop the new, enforceable workplace rules.

The new regulations recognize that the coronavirus poses a unique threat to workers that existing laws don’t adequately address. Since the pandemic began, workers around the country have complained about a lack of personal protective equipment, lax social distancing on worksites, and poor communication from employers about new infections among colleagues.

Debbie Berkowitz, a former OSHA official now with the National Employment Law Project, said that a dozen other states have also adopted workplace safety protections specific to the coronavirus, mostly through executive orders by governors. What sets Virginia apart is how comprehensive the rules are, and how occupational safety inspectors will be able to follow up on complaints in all industries.

“On the whole, it will offer Virginia workers an enormous amount of protection,” said Berkowitz, whose group pushed for the regulations. “What’s important is a worker can file a complaint and [an inspector] will go out and have a standard that employers have to meet, rather than just vague guidelines.” 

Federal OSHA oversees workplace safety in the private sector in most states. But Virginia is one of 21 states, along with Puerto Rico, that have their own OSHA-approved safety plans, overseen by state officials. Only those states would be able to develop the sort of broad, legally enforceable workplace rules that Virginia has, Berkowitz said.

The new Virginia rules will be in effect for at least six months, but can be made permanent through state law. They rank different worksites by the risk level workers face ― from low to very high ― with the requirements varying accordingly. Health care facilities would be considered high or very high risk, while poultry plants and retail stores would be considered medium risk. 

Workplace safety advocates in Virginia first appealed to state leaders back in March, raising the alarm about poultry processing plants where workers toiled shoulder-to-shoulder and had trouble getting tested for COVID-19. Poultry and meatpacking plants soon saw some of the worst coronavirus outbreaks in the country. In May, Northam ordered the state’s health board and labor department to develop the pandemic-specific rules for employers. 

The Virginia-based Legal Aid Justice Center, which works on civil rights and immigration issues, helped petition the state, holding car rallies to build support. Jason Yarashes, an attorney with the group, said immigrant workers in poultry plants and on farms were crucial to the effort.

“Workers courageously came to the forefront and said, ‘Look, OSHA is not protecting us, the state has to step in,’” said Yarashes. “Virginia has historically been very much lagging in terms of worker protections. … Virginia being on the forefront here, we’re really commending them.”