By Steve Haner

More than two dozen Virginia business associations have asked that the state’s Safety and Health Codes Board reject proposed workplace regulations to prevent COVID-19, stating they are unclear, contradictory, and not needed in light of other existing worker protections.

Some of the largest statewide associations, such as the Virginia Manufacturers Association, National Federation of Independent Business, and Virginia Retail Federation are on the list. So are some regional chambers of commerce and the Thomas Jefferson Institute for Public Policy. You can read their 13-page submission here. The conclusion reads:

“It is unreasonable to apply “one size fits all” COVID-19 regulations to all employers and employees.  Codifying guidance is not a reasonable replacement for regulation. It is confusing why after three months, the Regulations are being pursued through an emergency procedure, especially after OSHA (Occupational Safety and Health Administration) rejected the AFL-CIO’s petition for an emergency temporary standard for COVID-19 and the US Court of Appeals for the District of Columbia Circuit denied their petition for a writ of mandamus to compel OSHA to issue an Emergency Temporary Standard for Infectious Diseases.”

The draft rules (here) and a related 200-page briefing package (here) have only been available since June 12. The public comment period closes tonight, and the board is set to meet Wednesday, in a format where the public can only watch. More details are provided in a Bacon’s Rebellion post from this weekend.

A key concern for the coalition and for others who have filed comments against the proposal is the speed involved in promulgating emergency regulations, and the lack of input and debate normally allowed under Virginia’s Administrative Process Act. The coalition believes the Department of Labor and Industry:

“is proposing a wholly new regulatory and enforcement program that, based on the Regulations, will impact every business in the Commonwealth. The public participation and stakeholder involvement procedures outlined in the VAPA are designed to ensure that the impacts of a proposal such as this are fully understood. This is particularly important here, where DOLI is proposing to develop industry-specific or occupation-specific categories of risk.

“…. As a result, stakeholder involvement is especially critical to inform the development of this program and the ten (10) calendar days or six (6) business days to review and comment on over 225 pages of dense Regulations and briefing materials, as well as the utilization of an electronic meeting where no public comments will be permitted, is inadequate public transparency and participation.

“Further, the practical matter of fact is that employers, now three months into the COVID-19 pandemic, have already put into place procedures and controls that may be entirely undone by these Regulations, thus, creating additional regulatory uncertainty that is impractical.

“The Business Coalition is also aware that the proposed Regulations originated on April 23, 2020 from a petition and model language provided by the Legal Aid Justice Center, Virginia Organizing, and Community Solidarity with the Poultry Workers to Governor Northam, Commissioner Oliver, Attorney General Herring, Commissioner Davenport, and Director Graham. It is unacceptable that organized labor had months to advocate for the Regulations, but the business community was only afforded ten (10) calendar days or six (6) workdays to respond without any opportunity to testify before the Board.

Its specific complaints about the draft include how it confuses guidance and regulation throughout the document, which again bypasses procedure intended to protect those being regulated. The draft refers to itself often as a “standard/regulation” as if those were interchangeable when they are not.

The analysis points to six specific contradictory elements, some internal to the document and some instances where the state proposal contradicts other regulations or federal requirements. One seems to force employers to conduct contract tracing on infected employees when that has been the responsibility of the Health Department.

More than six pages of 50 individual bullet points follow, raising questions, suggesting better language, or pointing to unenforceable provisions. The state’s draft is not ready for prime time.. Many of the flaws flow directly from taking the draft from the unions and the groups that exist to sue employers on behalf of aggrieved employees, without seeking input from the businesses themselves.

One of the most egregious – but telling – is a proposed mandate that employers:

“…consult with the Attorney General of Virginia when making determinations in accordance with their obligations under federal civil rights law. The Attorney General (AG) advises and represents the Commonwealth of Virginia. The AG is not equipped to advise private sector employers. Employers must be able to rely on their own counsel. The EEOC has jurisdiction in these matters.”

Readers will recall

that the 2020 Virginia House of Delegates passed legislation to require all employers to submit massive amounts of personnel information to that same office and empowered it to go hunting for instances of unfair pay to punish. Expanding the Attorney General’s Office into an employee complaints bureau is becoming a theme of Virginia following the Democratic takeover.

The first question should always be, are a new set of state regulations needed? Do existing state and federal rules protect Virginians already? Are employers failing in their duties to their workers? Absent clear and convincing evidence in the affirmative, this proposal should be rejected. If not rejected, it needs to go through the full APA review process and be revised.