LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni

On July 15th, with COVID-19 cases spiking in many parts of the country, Virginia became the first state in the nation to adopt an emergency temporary standard (ETS) to protect workers from COVID-19. The Fund is proud to share that our own Travis Parsons, Associate Director of Occupational Safety and Health, played a large role in pushing the ETS forward and ultimately voting to adopt the standard. Travis has served as a member of the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board since 2014 and is a former chair of the Board.

“In adopting this emergency standard, the state of Virginia sent a clear message that workers are its most important resource, and that protecting their health and safety must come first,” says LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni. “The Fund commends the work that went into this standard, which not only ensures stronger protections for workers in Virginia, but also sets a precedent that other states and federal OSHA may soon follow.”

As we covered in our July issue, public health groups and labor groups have repeatedly called on federal OSHA to issue an ETS for COVID-19. A federal standard would also compel state-run OSHA programs to adopt similar measures. Thus far, federal OSHA has only issued guidance, leaving further action up to individual states.

The Path to an Emergency Temporary Standard in Virginia

The push for an ETS began in May with an executive order signed by Governor Ralph Northam that directed DOLI to draft a standard to prevent and mitigate the spread of COVID-19 in the workplace. The Safety and Health Codes Board would determine what went into that standard.

Over the next several weeks, the standard took shape. With a Codes Board made up of many different representatives, including those from both employer and employee groups across several industries, meetings were often full of debate. “Despite bumps in the road, we were fortunate to have a group of members willing to compromise and find solutions,” said Parsons. “At the LHSFNA, we serve the joint interests of both labor and management. Sometimes, that means compromise, and this standard was no different.”

Travis Parsons, LHSFNA Associate Director of Occupational Safety & Health

Weeks of progress toward a standard were almost undone in the final days before the vote, when an amendment was proposed that would have given businesses the option of choosing between the Virginia ETS or CDC guidance to achieve compliance. Again, a compromise was reached – this time to allow the CDC guidance only if it provides equivalent or greater protection than the state’s rule. While the amended standard still drew opposition from many business groups, particularly the poultry industry, the 14 member board ultimately voted 9-2 in favor of adopting the standard. The ETS will be in effect for six months unless it is extended or until DOLI replaces it with a permanent standard.

What’s in the ETS?

The Virginia ETS turns many CDC and OSHA guidelines into mandates and goes beyond them in several areas. A summary of its key requirements includes:

• Requiring employers to assess exposure hazards and categorize job tasks into four different risk classifications (very high, high, medium or lower), then follow a list of precautions based on that assessment. The standard classifies typical indoor and outdoor construction settings as a medium risk environment.
• Mandating appropriate personal protective equipment, physical distancing, sanitation and disinfection practices. This includes providing frequent access to handwashing and hand sanitizer.
• Prohibiting workers known or suspected of having COVID-19 from going to work for 10 days or until they receive two consecutive negative tests.
• Requiring companies to notify all employees within 24 hours if a coworker tests positive for COVID-19; employers must notify the Virginia Department of Health of positive COVID-19 tests and must notify Virginia OSHA of three or more positive tests within a two-week period.
• Requiring comprehensive training for workers whose jobs fall into the very high, high and medium risk classifications, including training on safe work practices and PPE.
• Prohibiting retaliation or discrimination against workers who voice concerns; employers must also offer flexible sick leave policies, telework and staggered shifts when feasible.
• Requiring that all employers with workers in the very high and high risk classifications, and employers with 11 or more workers in the medium risk classification, develop a written infectious disease preparedness and response plan within 60 days.

Many of these requirements will look familiar to employers who have already been taking action to protect their workforce from COVID-19. Virginia employers who continue to ignore these well-established protocols will now face citations ranging from $13,000 up to $130,000 for repeated and willful violations.

“As a safety and health professional and a Virginia resident, I was proud to vote yes for a standard that offers improved protections for workers and gives clear direction to employers,” said Parsons. “I hope other state OSHA programs are able to use this as a blueprint for adopting similar protections for workers.”

At least 13 states have adopted COVID-19 worker safety precautions so far, with Virginia being the first to pass a standard. Oregon OSHA is also moving forward with a draft standard that would cover all workers and include special provisions for health care workers.