Still operating under the authority of emergency power related to the Wuhan coronavirus pandemic, Virginia Governor Ralph Northam (D) and his administration have proposed sweeping new regulations for all employers and employees in the state.
Announcing an emergency meeting for this Wednesday, the governor's Safety and Heath Board laid out new, far-reaching regulations ostensibly meant to protect workers in the food preparations and health care industries. However, the extensive proposition of new rules and regulations spell out major hurdles for all Virginia businesses, including office work and retail, attempting to re-open.
With the force of state emergency powers behind him, Gov. Northam possesses the ability to make these rules law with a simple signature. Comments from concerned residents and business owners will be closed by Monday evening and the full force of the regulations could be implemented on Wednesday. The laws do not automatically vanish when the emergency phase is lifted or if the threat of COVID-19 infection is greatly diminished either.
Among the list of new proposed laws, which would be in addition to, not a replacement of, current laws, is a requirement of all Virginia employers and employees to wear face coverings at all times, with no exceptions. Though facial coverings in businesses have been required since the end of May throughout the state, exceptions were made for contracted and sub-contracted employees. Under new proposed regulations, this will no longer be the case.
Full employer access to employee medical records and past "hazard communication" would also be required under the proposed regulations.
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Poultry processing employers are singled out specifically in the 200+ page regulation proposal, saying that all employees must be temperature screened every day. Any employee who failed said temperature check, which is not defined in the legislation, would be sent home with full pay.
This proposal, as the Poultry Federation pointed out, does not take into account the unreliability of temperature screenings considering that high temperatures have many causes and infected persons may not even have an elevated temperature.
Whether the Commonwealth should require employers to screen their workers with temperature checks given this limited utility, while also considering the risk to the temperature taker, may ultimately be beneficial, but it is a decision that should be made in the ordinary rulemaking process where all available facts and viewpoints can be reviewed in a considered manner.
A statement from representatives of the Virginia Poultry Federation said that their members were already subject to specific scrutiny over sanitation and health care standards and did not feel further regulation was warranted. The statement also noted that several Virginia activist groups, including the Legal Aid Justice Center, Virginia Organizing, and Community Solidarity with the Poultry Workers had petitioned state officials to usurp due process in an effort to enact strangling regulations for no reason.
The statement cited a recent request federal request made by the AFL-CIO and Labor Secretary Eugene Scalia's apt response.
The United States Secretary of Labor, Eugene Scalia, recently addressed a similar request for additional regulations made by the President of the AFL-CIO, Richard Trumka. But as Secretary Scalia noted, employers are already “implementing measures to protect workers” and “employers who fail to take steps are likely violating existing OSHA obligations.”
Concern about implementing "static" regulation over an evolving medical crisis was also made clear. The continuing discrepancy of thought about the efficacy of cloth face coverings was also mentioned.
Cloth face coverings are not PPE by definition. PPE is designed to prevent exposure to the user of a workplace hazard. The CDC has recommended cloth face coverings to prevent the user from exposing others to COVID-19.
Nearly 800 pages of comments have already been posted in response to the announcement of the Wednesday meeting. The comments are said to be part of the review process on Wednesday and will ostensibly be considered in the final ruling by the Safety and Health Board.
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