Part I --The Governor Mandating These Standards Was Illegal--Bad Process
In Executive Order 63, Governor Northam ordered standards that apply to all employers with certain paramenters and through and emergency process that avoided notice and comment rulemaking, regulatory impact statements, and regulatory flexibility analysis for small business. The Governor had no authority to do this. The Safety and Health Codes Board has to follow the statutory standards and authority. None of those standards include orders from the Governor. The sweep of these standards, lack of workability, and the broad threats to employers across Virginia started with a mandate that the Board should not have considered. That mandate poisoned the process.
The emergency temporary standard upon which this proposed permanent standard is based failed to meet the statutory tests that each component by necessary for each portion of the regulated community it applies to address a grave danger. At a time with Virginia is reopening, claiming that all employers, inside, outside, small, large, customer facing or not pose a grave danger is not correct. The Board has not considered and has displayed no intelligent conversation whether the full sweep and each component of the emergency temporary standard (ETS) and now the proposed permanent standard are necessary and that it is necessary to not provide a regulatory impact analysis and a regulatory flexibility analysis. The danger from those analyses is to DOLI and the Board because those analysis would allow for comment on the factual and needless burdens of the rule.
Given that the Federal Occupational Safety and Health Administration has guidelines and certain rules, and that agency effectively argued against creating these kinds of regulations mean that the federal agency does not believe such regulations are useful, let alone necessary to address a grave danger, feasible, and supported by evidence about each requirement.
The immediate effective date of the ETS indicates the failure of the Board to consider the feasibility of the ETS, and their lack of capacity to therefor understand the impacts of anything more permanent. Few employers are aware of the ETS and obviously cannot be in compliance. The Board and DOLI have failed to take the responsible steps to roll-out information about the requirements before simply applying them-- a step that made virtually every employer in non-compliance on day 1.