Virginia enacts first COVID-19 workplace rules as calls grow for national standards

While manufacturing companies have taken steps to rework their factories to reduce the spread of the coronavirus, there's a small but growing push to go further and have states and Washington mandate rules.

On July 15, Virginia become the first state to adopt emergency COVID-19 regulations for all workplaces, setting legally enforceable rules for things like protective gear and quick employee notification if a co-worker tests positive. Similarly, Oregon wants its own rules in place by September.

There's also a push in Washington to set national rules as part of the next round of COVID-19 legislation, before Congress recesses Aug. 7. Mostly it's been Democrats calling for that, but a few Republicans in recent days have signed on, too.

In Virginia, the state government said it was taking action to fill a void from Washington, but manufacturing groups and resin maker DuPont Co., which operates three plants there employing 2,000 people, questioned the state's July 15 action.

The Virginia Manufacturers Association echoed arguments made by the Trump administration that existing rules and industry-specific guidance give government proper enforcement authority and that new regulations are not needed.

VMA said it's worked to develop industry best practices, put together a COVID-19 model action plan and helped organize donations of personal protective equipment.

"[Virginia's Department of Labor and Industry] does not have information to assess or understand the implications this proposal will have on manufacturers or its supply chain," VMA said. "Employers, now three months into the COVID-19 pandemic, have already put into place procedures and controls that may be entirely undone … creating additional regulatory uncertainty that is impractical."

DuPont, which makes PET films, Tyvek-brand nonwoven high density polyethylene, nylon and other materials in Virginia, said it supports the need for extra precautions and "critical measures" to protect employees, but it argued that Virginia's new regulations "create concerns for many employers."

The company gave state officials a detailed list of what it called problem areas in the regulations, such as overly broad descriptions of COVID-19 symptoms that could lead to "just about every illness" being treated as a suspected case of the virus.

It suggested Virginia base its symptoms on a Centers for Disease Control list "to avoid abuse."

"Keeping the workplace safe, which has always been a cornerstone of our operation, has taken on new meaning during the past six months," David Johnson, plant manager of DuPont's Spruance facility in Richmond, wrote to state officials in comments.

Virginia officials said that while many companies have adopted similar safety provisions in their own operations, others have not done enough voluntarily, so they need to act.

Democratic Gov. Ralph Northam said the new rules would help Virginia's economy and better protect workers from a new threat.

"In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation's first enforceable workplace safety requirements," Northam said. "Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it's key to our economic recovery."

The head of the Virginia agency that drafted the rules said it wanted to work with companies that are not in compliance.

"Many employers have already enacted these evidence-based practices, and we are committed to working collaboratively with those who have not to ensure they are in compliance with the new emergency temporary standard," said C. Ray Davenport, commissioner of the Department of Labor and Industry.

More specifically, Virginia's rules require that all employees be notified within 24 hours if a worker tests positive and requires that all workers who are positive or suspected cases must stay away from work for 10 days or have two negative test results.

It also has requirements around social distancing, protective equipment, record keeping, infectious disease preparedness and training. It will initially be in effect for six months.

Labor groups including the AFL-CIO praised Virginia's action.

But officials in the Donald Trump administration have argued that additional standards are not needed.

Loren Sweatt, a deputy assistant secretary of labor at the Occupational Safety and Health Administration, told Congress in late May that inspectors can use existing standards in respiratory and protective equipment, sanitation and other areas for COVID-19 enforcement, as well as the general duty clause in federal safety law.

"Some have tried to argue that because OSHA is only issuing COVID-19 guidance, employers have no compliance obligations," Sweatt said. "This is not accurate."

She said at the time that OSHA had received 4,200 COVID complaints, doubling its regular workload. But she also told the congressional panel that the agency had issued only one specific COVID-19 citation under the general duty clause.

In Washington, the debate around national standards had been largely along party lines, with mostly Democrats urging OSHA to write emergency rules. But a few Republican lawmakers in recent days have joined that call.

A group of 10 Republican members of Congress wrote to their party's leadership in the House July 14, urging that upcoming coronavirus legislation direct OSHA to write emergency COVID-19 standards.

"While OSHA has issued industry-specific guidance for various sectors, the guidance is suggested and not enforceable," they wrote. "Issuing an emergency standard would protect the health and safety of millions of Americans and reduce the size of a 'second wave' of infections as the economy reopens."

Such a standard would also help the economy by protecting companies from some lawsuits related to COVID-19, the Republican lawmakers said.

"Offering protections against frivolous lawsuits will give businesses peace of mind and help the economy rebound," they wrote. "Instituting reasonable OSHA standards could help achieve this goal."

That liability protection for businesses has been one of many sticking points in any upcoming coronavirus legislation.

The next few weeks will see furious debate in Congress ahead of a planned adjournment Aug. 7, and it's not clear if mandated safety rules will ultimately be part of any legislation, as lawmakers debate extending enhanced unemployment benefits, aid to state and local governments and other measures.