By Brian Skinner, Esq.
As states began the process of reopening their economies, they took different paths to put in place COVID-19 mitigation rules for businesses. Some have implemented mandatory standards for businesses that are intended to protect employees. Other states have simply issued guidelines.
In West Virginia, the state reopened its economy without creating specific mandatory safety rules to protect workers from contracting COVID-19. Instead, the governor put in place “guidelines” for certain non-essential businesses, such as small businesses, restaurants, and retail establishments, that were closed when the he issued his “Stay at Home” order. The state did not and has not required specific safety rules for “essential businesses” that were not closed by the executive order.
In Ohio, as the state began the process of reopening its economy, the director of health ordered sector specific COVID-19 information and checklists for businesses/employers that mandated specific mitigation efforts for both employees and customers.
At the federal level, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) does not appear to have any plans to create a COVID-19 related national safety standard. Indeed, the AFL-CIO in June lost a lawsuit it hoped would compel the agency to promulgate national safety rules. Although not specific to COVID-19, OSHA does have industry-specific safety recommendations that already require businesses to provide workplaces free of deadly or seriously harmful hazards. The agency asserts that these recommendations are the best means to protect workers and give employers guidance and confidence in the steps to be taken to provide a safe workplace and satisfy their obligations.
While OSHA may not be interested in creating a national safety standard, Congress could step in and require regulations. The latest House Democratic coronavirus aid bill would require OSHA to issue an emergency coronavirus standard. However, at this time efforts to pass any legislation in response to the pandemic at the federal level have been stalled.
Some states are creating their own safety rules to protect workers from coronavirus while on the job. Rules went into effect in Virginia in July, and regulators in California and Oregon are now debating a similar move.
Unions and labor advocates are clamoring for more states to adopt COVID-19-specific safety standards arguing that employers will not provide protective equipment, create socially distanced break rooms, tell sick workers to stay home and take other steps to reduce infection risk if it hurts the bottom line.
Business groups say new regulations are unnecessary because state and federal officials already have the authority to punish businesses that fail to protect their employees. They also argue that we don’t yet know enough about the virus to create rules and we should wait until science fully understand how COVID-19 spreads before burdening businesses with confusing regulations that may not be effective in stopping the virus.
Labor advocates also assert that OSHA abdicated its responsibility by not doing enough to respond to coronavirus-related complaints. Despite receiving over 8,000 such complaints since April, OSHA has issued only three citations, all to an Ohio nursing home chain. Consequently, labor advocates are looking to the states to establish enforceable standards. About half the states run their own federally approved health and safety programs, which cover either all employees or just public sector workers. Officials in those states can create state-level workplace safety standards that go beyond federal requirements. Ohio and West Virginia are under federal OSHA jurisdiction which covers most private sector workers within the state. State and local government workers are not covered by federal OSHA.
In Virginia, Governor Ralph Northam responded to a grassroots pressure campaign that began with poultry plants, to make the state the first to announce a coronavirus-specific standard. Virginia’s new standard codifies CDC guidance, including requiring employers to provide face masks to certain workers and give staff frequent access to hand sanitizer or soap and water. It also requires employers to train workers on coronavirus prevention and prohibits employers from retaliating against workers who report infection control concerns.
Because we are learning more about the virus and how it transmits itself, some aspects of the Virginia standard may already out of date. For example, the rules include a former CDC recommendation that employers use either symptoms or test results to judge when an infected employee can safely return to work. The latest CDC guidance advises employers to use only symptoms. Consequently, business groups worry that new regulations could lead to lawsuits.
Other progressive states may follow Virginia’s lead. In Oregon, the state’s OSHA has used its authority to create a temporary standard, and regulators there have begun hosting listening sessions with workers and businessowners. In California, regulators are currently considering a petition from labor groups to create a state standard.
Some governors have used their authority to issue executive orders to require enforcement of public health recommendations. In Michigan, Governor Gretchen Whitmer issued an order requiring businesses to take steps such as keeping everyone on a worksite at least six feet apart, requiring employees to wear face coverings if they can’t keep a safe distance from others and immediately notifying the local public health department, co-workers and contractors if a worker tests positive for the virus.
As noted above, in Ohio the director of health issued mandatory requirements for employers such as ensuring minimum of six feet between people and requiring all employees to wear facial coverings, except in specifically permitted circumstances. The Ohio rules also provide for shift patterns, physical spaces and workstations, and what to do when a case of COVID-19 is confirmed. The health director’s order may be enforced by state and local law-enforcement, as well as local health departments, and violations are punishable as a second-degree misdemeanor.
In West Virginia, the governor’s prescribed guidelines are just that, guidelines. And although industry specific guidelines are referenced by executive orders, they are not mandatory. The guidelines tell employers that they “should”, rather than “shall”, utilize certain mitigation efforts. Thus, it is unlikely that they may be enforced by either law-enforcement agencies or state and local health departments.
Brian J. Skinner is the former counsel to the West Virginia House of Delegates Committee on the Judiciary and counsel to the West Virginia Senate Minority Caucus. He has over a decade of experience as an adviser to legislators on legal and political issues related to pending legislation; providing research and legal analysis services to legislative committees; and preparing bills, resolutions, amendments, and other documents for the West Virginia Legislature.