COMMENTARY: The truth behind Virginia’s proposed COVID workplace regulations

COMMENTARY: The truth behind Virginia’s proposed COVID workplace regulations

A PANEL of unelected citizens and agency chiefs who make up Virginia’s Safety and Health Codes Board are about rush into place an emergency workplace regulation that will impact every business in the commonwealth with little input from those who would be drastically affected: Virginia’s employers.

This broad, rigid, one-size-fits-all mandate, pushed by labor to address worker concerns about the spread of COVID-19, is likely to become permanent and thus unable to evolve as science on the virus changes.

That creates the possibility that the workplace may actually end up being less safe for Virginia workers.

When the outbreak began, we didn’t need face coverings … and then we did.

We initially lacked understanding about the role of asymptomatic carriers.

We heard how long infectious droplets might last on surfaces, then scientists learned that contracting COVID-19 that way was rare.

This new proposal for workplace regulations cannot adapt to that ever-changing science because it’s inflexible and it would be locked into the state regulatory code. That isn’t best for employers who want to keep their employees safe, or for the workers themselves.

For months, businesses have been implementing industry-specific guidance from the governor, the Centers for Disease Control and Prevention, and the Occupational Safety and Health Administration to ensure physical distancing, install workstation plexiglass panels, conduct extensive sanitization, alternate employee shifts, and much more.

They want to keep their workers safe because they need healthy employees to operate, and most employers do care about their workers’ welfare.

But this new confusing proposal conflicts with much of what has already been done. And as much as proponents claim it’s the only way to enforce workplace infection control, that simply is not true.

OSHA provided recent guidance confirming that Virginia’s current laws ensuring a workplace that’s safe from disease  and injury will legally suffice.

What employers want and deserve from the state is a chance to explain how this impacts their daily operations. But after issuing 230 pages of poorly written draft regulations and supporting documents, the comment period lasted a mere six business days.

Employers also want to be able to answer questions or offer input at the Health Code Board’s virtual meetings, but they are barred from doing that.

This process not only lacks transparency, but it’s also downright foolish for Virginia decision-makers to not want to know more about whether this plan is worthy, feasible, or even workable for those who must carry it out – and if it   would truly do more to protect workers.

Some of the requirements of the draft regulation are a bit bizarre and burdensome for businesses. Right now, workplace regulations are based on the job’s risk,  such as using a saw or climbing ladders. Yet this proposal throws all that out, and instead requires an employer to set one of four risk factors from low to high for each individual employee.

Oddly, they must then reevaluate all those employee risk factors should the local community—outside the workplace—experience a moderate or substantial spike in disease transmission.

Even if employers do all they can to ensure worker safety, vague language in the proposal makes this regulation a litigation trap.

How can an employer know if a worker tested positive or is symptomatic if an employee doesn’t happen to share that information or they don’t notice the symptoms?

Employers are required to  use “reasonable diligence,” but that isn’t defined at all. This will create a field day for trial lawyers.

Many Virginia businesses have been hit hard by the pandemic, business shutdowns, and the resulting financial turmoil. The state needs them to come back and lead the economic recovery.

But imposing a massive mandate upon them now, without even listening to their concerns,  would just be another painful blow.

Full article here.