The Legal Aid Justice Center (LAJC) strongly supports DOLI’s proposed emergency standards, which will provide vital workplace health and safety protections for Virginia workers during the COVID-19 pandemic.

Why We Need the Proposed Rule: An Emblematic Case

One of LAJC’s recent cases shows precisely why these regulations are needed:

On May 29, LAJC helped a worker file a COVID-19-related VOSH complaint against an employer. At least four workers had already contracted COVID-19, including the complainant, but the company refused to do anything to prevent further spread. Within minutes of receiving the worker’s complaint, a VOSH regional director responded by email saying that because there was “no Virginia law, standard, or regulation specifically designed to address the COVID-19 virus,” VOSH did not consider it appropriate to do workplace inspections in response to these kinds of complaints.

The above example underscores the urgent need for the Safety and Health Codes Board to approve the standard now.  In so doing, DOLI and VOSH can implement the enforceable standard and hold employers accountable for the ongoing health and safety of employees during an unprecedented public health crisis.

LAJC Supports Much of the Proposed Rule

LAJC strongly supports much of the Proposed Rule. In particular, LAJC appreciates that the Proposed Rule creates mandatory and enforceable requirements to protect worker health; requires health and safety plans for high- and medium-risk workplaces; and protects workers against retaliation. We appreciate all of the hard work and effort that went into crafting this Proposed Rule on an emergency basis, and we urge its swift adoption as soon as possible.

LAJC is Concerned that Employers Can Attempt to Evade the Proposed Rule’s Purportedly “Mandatory” Requirements.

While LAJC supports much of the Proposed Rule, we are nonetheless concerned that the Rule as written could leave some employees vulnerable and unprotected. Specifically:

• Section 10:
  
  
  • Problem: The main reason that worker advocates petitioned for this Proposed Rule is because Virginia workers need and demand workplace standards that are mandatory and enforceable. And at first glance, the Proposed Rule appears to do just that. For example, Section 40 is called “Mandatory requirements for all employers,” and Sections 50 and 60 refer to “requirements” for certain hazards and job tasks. But Under Section 10(G), if an employer has complied with the coronavirus guidance issued by the CDC, that employer will be considered to have complied with the Proposed Rule as well. But the CDC’s coronavirus guidance is unenforceable because it is voluntary, not mandatory. CDC publications are only suggestions. So an employer can easily sidestep the Proposed Rule entirely by “complying” with CDC guidance that doesn’t actually require the employer to do anything. This is one of the main problems with the Proposed Rule.
    
    
  • Proposed Solution:  Delete Section 10(G).
    
    
• Sections 40–60:
  
  
  • Problem: Again, Virginia workers need and demand workplace standards that are mandatory and enforceable. But many of the Proposed Rule’s protections (like physical barriers and social distancing) are mandatory for employers only if they are “feasible.” [See, e.g., Section 50(B)(11) and Section 60(B)(1).] Thus, an employer can get away with not protecting its workers simply by arguing that providing the protections would not be technically or economically feasible. [See Section 30, “Definitions.”]
    
    
  • Proposed Solution: Explicitly put the burden of proof on the employer to show that a given protection would not be “feasible,” and set a high standard for infeasibility.

Other LAJC Comments on the Proposed Rule

• Employment and Joint Employment
  
  
  • Section 10(E) refers to “employees” and “joint employees” but doesn’t define those terms. There are different legal tests. Given the Proposed Rule’s remedial purpose, LAJC proposes that VOSH use the broad worker-protective tests adopted by the Fourth Circuit in Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 135 (4th Cir. 2017).

• Virginia can and should provide greater worker protections than the federal OSHA
  
  
  • Industry lobbyists (NFIB) argue that the Proposed Rule should not be adopted because “this issue has already been adjudicated on the federal level.” And, yes, the federal OSHA has issued some non-binding guidance for employers related to COVID-19. But because Virginia is an OSHA “state plan” state, VOSH can respond to novel and emerging threats (like coronavirus) by issuing its own state-specific regulations, rather than having to wait for national guidelines from Washington.
    
    
  • NFIB also notes that the Proposed Rule provides greater protections than the federal OSHA chooses to provide—which NFIB considers to be a bad thing. However, the Briefing Package and the rest of the administrative record plainly shows why greater protections are absolutely critical. Virginians are fortunate to have an organization like VOSH on their side.

Conclusion

We strongly support the Proposed Rule. Thank you for considering LAJC’s comments on the matter, and we urge you to adopt the Proposed Rule as soon as possible after addressing the comments and proposals made in this letter.

With best regards,

Jason Yarashes, Lead Attorney & Program Coordinator, Legal Aid Justice Center

Nicholas Marritz, Attorney, Legal Aid Justice Center