Va. Adopts Nation's First COVID-19 Workplace Safety Mandate

By Vin Gurrieri
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Law360 (July 15, 2020, 10:52 PM EDT) -- Virginia on Wednesday became the first state to adopt an emergency workplace safety standard addressing the ongoing coronavirus pandemic, which Gov. Ralph Northam said is necessary to fill a gap created by federal inaction.

Virginia Gov. Ralph Northam said the state's new COVID-19 workplace safety standard comes "in the absence of federal guidelines." (AP Photo/Steve Helber)

The state's infectious disease prevention benchmark mandates that workers be provided with personal protective equipment and sets parameters for businesses to sanitize their worksites, enforce social distancing protocols and have infectious disease response plans, according to Northam's office.

If a worker tests positive for the virus, a business must inform all of its employees within 24 hours and must bar workers who are suspected to have had contact with the infected person from returning to work either for 10 days or until they test negative for the virus twice in a row. The rule will remain in place for six months, with the possibility that it is made permanent through an existing statutory process, the governor's office said.

Northam said in a statement that the new rule comes "in the absence of federal guidelines."

"Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic," Northam said. "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. 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 and it's the right thing to do."

The Virginia Department of Labor and Industry's Safety and Health Codes Board voted to approve the rule Wednesday after Northam issued an executive order in May directing it to create an enforceable infectious disease regulation.

The DOLI said on its website that the text of the new rule is still being finalized. The rule is expected to be made public and take effect sometime around the end of the month.

AFL-CIO President Richard Trumka praised the move by Virginia lawmakers in a statement Wednesday.

"The virus continues to pose a grave danger to working people, and this strong, enforceable standard requires state employers to improve working conditions through clear, science-based measures, preventing further outbreaks in our communities," Trumka said. "Virginia had to step in where the Trump administration has failed woefully to protect workers who are risking our lives and our livelihoods during this pandemic. Workers and our unions will continue to advocate for a federal standard that protects all working people, private and public, no matter where we live."

The issue of whether a binding, temporary workplace safety standard should be issued on a federal level by the U.S. Department of Labor's Occupational Safety and Health Administration has been a fraught one over the past few months.

Although OSHA has issued nonbinding, industry-specific workplace safety guidance material, it has resisted calls from some lawmakers, workers' advocates and unions to issue an emergency standard that sets a baseline for how employers respond to the pandemic. Labor Secretary Eugene Scalia has said the agency has done plenty to safeguard workers' health without having to resort to rulemaking.

The AFL-CIO went so far as to try to get courts to force OSHA to issue an emergency standard. But a federal appeals court last month rejected the labor federation's petition, deferring to the agency's judgment that one was not necessary. The AFL-CIO has asked for en banc review of that decision, which is still pending.

--Additional reporting by Kevin Stawicki and Braden Campbell. Editing by Alanna Weissman.

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