Many state governments and workers’ rights groups have expressed concern at OSHA’s failure to implement emergency temporary standards (ETS) for employers to address worker safety issues related to the COVID-19 pandemic. Virginia has taken a lead in developing ETS to control, prevent, and mitigate the spread of COVID-19 in the workplace.
Throughout the COVID-19 pandemic, OSHA has declined to issue ETS for the workplace, stating that the regular workplace safety standards already in place are sufficient to protect workers during the outbreak. OSHA has emphasized the importance of strictly adhering to the regular standards during these times and has provided industry-specific best practices for preventing and containing the spread of the virus in the workplace. However, the guidance is not mandatory and has created confusion for companies that are receiving conflicting recommendations from their state and local agencies. Further, the lack of one federal standard has caused a hodgepodge approach for companies operating in various states.
In response to these issues, on May 26, 2020, Virginia Gov. Ralph Northam issued Executive Order 63, which directed the Commissioner of the Virginia Department of Labor and Industry (Virginia DOLI) to establish “emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace.” The regulations and standards must address PPE, respiratory PPE, sanitation, and access to employee exposure and medical records and hazard communications. Once those are finalized, the Virginia DOLI will have authority to enforce them through civil penalties and business closures.
On June 11, 2020, while the Virginia DOLI was in the process of drafting the ETS, a federal appeals court declined to force OSHA to issue ETS in response to the COVID-19 pandemic. A labor union organization had requested OSHA be required to implement ETS, but the court found OSHA has the authority to determine whether workers are in grave danger and that OSHA’s decisions regarding this issue will be given “considerable deference.” In light of this order, it appears unlikely that OSHA will implement ETS anytime soon, leaving this issue to the states.
In mid-June, the Virginia DOLI released its proposed ETS, which will require all Virginia employers to, among other things:
Notably, employers are prohibited from discharging or discriminating against employees who wear their own PPE or raise a reasonable concern about infection control.
On June 24 and 29, 2020, the Virginia DOLI’s Safety and Health Codes Board (the “Board”) met to review and adopt the proposed ETS. The Board is scheduled to meet again on July 7, 2020, to finalize the ETS. The text of the proposed ETS, revisions and comments can be viewed here.
We anticipate other states may follow Virginia’s lead and implement their own ETS in the coming weeks or months. For example, Oregon OSHA released a tentative timeline on June 26, 2020, regarding its intention to develop ETS for the workplace in response to the pandemic, as well as permanent rules to address infectious disease control generally. Oregon anticipates adopting these ETS by September 1, 2020.
We recommend monitoring whether any states where your business operates implement similar ETS in the near future. If this occurs, and we can be of assistance to you or your company, please contact your Foley attorney to be directed to the appropriate resource.