Fight over COVID-19 workplace rules moves to states

The battle over workplace safety rules during the coronavirus is spreading to states.

Virginia this week took a major step toward creating its own set of safety rules for workplaces amid frustration with the Occupational Safety and Health Administration (OSHA) declining to impose a nationwide COVID-19 standard. 

The Virginia Safety and Health Codes Board voted to move forward with emergency temporary standards, which were drafted under direction from Gov. Ralph Northam (D).

Unions and other worker advocates are hoping the eventual regulations will serve as a framework for other states and prompt them to take action instead of waiting for a federal mandate that may never come.

“States should issue their own strong and comprehensive standard for COVID as federal OSHA is refusing to take action,” MK Fletcher, a health and safety specialist at the AFL-CIO, told The Hill, while noting that a federal rule would be preferable.

The new rules would require social distancing and cleaning standards, prohibit employees from coming to work if they have coronavirus symptoms and require employers to develop policies in case an employee exhibits symptoms. They also would require employers to tell employees within 24 hours of any possible exposure to the virus.

Fines for violations could range from $13,000 to $130,000, increasing for repeat offenders.

The AFL-CIO submitted comments for Virginia’s emergency temporary standard on Monday and called for other governors to follow Northam’s lead.

The American Federation of State, County and Municipal Employees (AFSCME) also provided comment and stressed its support for mandatory workplace rules.

“Voluntary guidelines and recommendations focusing on COVID-19 will not protect workers sufficiently, as evidenced by the fact that many employers currently are not taking the appropriate and necessary steps to protect workers from COVID-19 exposure,” AFSCME wrote to the Virginia board.

“This failure of voluntary guidelines has had and will continue to have tragic consequences, as is readily apparent in the number of confirmed cases and deaths among essential workers,” the group added.

OSHA has received 5,632 complaints pertaining to COVID-19, closed 4,417 of them, and investigated all of them as of Tuesday, according to a Labor Department spokesperson. Only one coronavirus-related inspection has resulted in a citation from OSHA.

Virginia’s temporary emergency safety rules, slated to be in effect for six months, will be the first in the country to pass through a state’s health and safety board while nonessential businesses are starting to reopen.

The state’s 14-member board voted 9-3 this week to create the safety rules, with two members abstaining.

The board plans to meet next week to vote on implementing language. The new rules will then go into effect after public notice.

Northam’s office said the governor is committed to protecting workers during the coronavirus but did not call on other governors to follow suit.

“While he cannot speak for other states, he felt it was particularly important that Virginia step up and ensure basic safety standards for all workplaces — particularly given the lack of enforceable standards from the federal government,” a spokesperson told The Hill.

The National Conference of State Legislatures said it is not aware of any state bills that lay out a set of safety standards, but noted that there is legislation around screening and testing procedures, as well as providing information to workers.

Some governors have taken executive actions to impose rules.

Washington Gov. Jay Inslee (D) directed the state’s Department of Labor and Industries to establish emergency workplace rules in May, and the department is enforcing those under state authority by inspecting complaints about businesses and levying fines and penalties for violations. 

“We think the federal government has failed to provide adequately protective and enforceable standards for workers. But we aren’t waiting for them. We have adopted measures at the state level in the absence of federal leadership,” a spokesperson told The Hill.  

Additionally, Colorado Gov. Jared Polis (D) issued an executive order on Saturday ordering certain workers to wear nonmedical face coverings. The order also provided discretion to certain employers to deny individuals who fail to wear a medical or nonmedical face covering admittance into an establishment.

“As we take steps to return Coloradans to work, we must continue to take measures to facilitate reopening the economy while protecting public health by taking steps to incorporate best practices to protect State and county employees from infection,” the order read.

The $3 trillion House-passed coronavirus relief bill, which has been dismissed by Senate Republicans, would direct OSHA to issue an emergency temporary standard within seven days. Unions, along with Democrats and worker rights advocates, have called for such a standard, but OSHA has instead issued guidance. 

OSHA, a division of the Labor Department, can authorize an emergency standard if it determines workers are in grave danger. That standard can only be challenged in a U.S. court of appeals. OSHA guidance, meanwhile, allows for flexibility and lets the administration officials change it as they see fit.

The agency argues it’s been protecting workers by providing guidance to employers on best practices for handling COVID-19.

The spokesperson said the Labor Department “has a strong set of pre-existing enforcement tools that protect workers from coronavirus, and the Department will enforce, where appropriate,” but declined to comment on Virginia’s efforts.