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Northam's stay-at-home order confusing many employees, bosses

RICHMOND — Ten days after his parents returned from a cruise to Mexico, an administrative employee at Hampton University — who agreed to speak to The Virginia Mercury on the condition of anonymity to avoid repercussions from his supervisors — got a message from them.

The cruise line had emailed them, warning that other tourists on the ship had tested positive for COVID-19. They were recommended to self-quarantine until March 29, 14 days after they first disembarked.

His mind flashed back to when he met his parents a day after they got back from the cruise. He emailed his boss, who emailed the director of their department, who asked him to share the news with the university’s health center. The director of the health center advised him to leave the office and self-quarantine until two weeks after his last contact with his parents.

His boss asked the university’s human resources department if he could work from home for the rest of the quarantine period. The request, he wrote in an email, “was flat-out denied with no reason given.”

“‘The director [of HR] advised that staff have to use their paid sick leave in order to be paid when absent,’” he added in a later phone interview, reading an email from his boss informing him of the decision. “That’s the only explanation I got.”

He took the sick days. By the end of the month, he was back at his desk, along with hundreds of other Hampton University staffers.

School officials have declined to comment on why employees are still being required to work from campus. Matthew White, director of university relations, referred back to a March 11 letter from Doretha Spells — the school’s vice president for business affairs — stipulating only that students and staff who had traveled internationally were required to self-quarantine.

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They’re far from alone. More than a dozen Virginians reached out to the Virginia Mercury this past week with their own stories of being required to work from the office amid a growing pandemic of COVID-19 cases and strict instructions from Gov. Ralph Northam to stay at home. On Monday, Northam took the directive a step further, issuing a stay-at-home order through June 10.

“If we can all stay at home, we don’t give the virus a chance to infect the next person,” he added at a press briefing on Wednesday. “We slow it down. The virus can’t live by itself — it needs people like you and me, called hosts, to survive.”

But the messaging surrounding the stay-at-home order has largely led to confusion for both employees and employers, said Corey Pollard, a Richmond-based attorney specializing in workers’ compensation law.

Despite the governor’s firm instructions, the stay-at-home order — which incorporates an earlier directive — specifically excludes professional business operations beyond the bars, restaurants and recreational sites forced to close on March 24, added Courtney Malveaux, an employment attorney who formerly served as Virginia’s labor commissioner.

Professional operations are encouraged to “utilize teleworking as much as possible,” according to the order, and “must adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces and apply the relevant workplace guidance from state and federal authorities” when teleworking isn’t feasible.

But in practice, the work-from-home order, and an ongoing ban against gatherings of 10 people or more, doesn’t apply to most workplaces in Virginia.

“We hope business will practice social distancing and the 10 person rule, even though we are not enforcing this,” wrote Megan Healy, the governor’s chief workforce adviser, in an email on Tuesday.

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The discrepancy between the messaging and the reality of the order has led to widespread uncertainty among the people it affects, said Pollard. Within the last two weeks, he said he’s been contacted with “many, many” coronavirus-related questions, including at least two from employees in regular office settings who were concerned that their coworkers might have been exposed to someone with the disease.

“They had concerns specifically from a workers’ compensation standpoint,” he continued. “They have a fear of contracting it and how it will affect not just them, but also if they have children at home or anyone else they’re around. They also really can’t deal with the wage loss if they take two weeks off, on top of fears of being terminated for not coming in.”

The same concerns have been expressed to the Mercury by a broad spectrum of Virginians, from government employees to white-collar workers at private defense companies. A software developer at Lockheed Martin in Manassas — who also spoke on the basis of anonymity — said she’s still working in a lab with between 140 and 200 people in close proximity.

Under a federal memorandum, most employees for defense-related companies have been designated as “essential critical infrastructure workers,” giving their employers broad purview to enforce office-based work. Both Lockheed Martin and Elbit Systems of America, a defense manufacturer with a plant in Roanoke, issued “carry papers” for their employees after Northam announced his stay-at-home order — documents on official letterhead exempting them from the directive.

One staffer at Elbit Systems said the company still expected a broad swath of its workers to come into work every day, even after an employee at the plant tested positive for COVID-19.

“I’m just waiting for the other shoe to drop,” he said. “I think we’re all waiting for there to be a bigger outbreak.”

Amy Hartley, a spokeswoman for the company, did not respond to a request for comment.

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Both Pollard and Malveaux said employers have been equally confused on how to interpret the directive and what safety measures — if any — are required to protect employees who come into the office. Virginia is one of 25 states with a state-run workplace safety program approved by the federal Occupational Safety and Health Administration. But it largely takes its guidance from federal directives, Malveaux said.

OSHA has issued non-mandatory guidance on preparing workplaces for COVID-19, including four different levels of exposure risk. Low-risk employers, including many who operate traditional office settings, could implement administrative controls like staggering shifts or spacing out employees to reduce the risk of transmission, Malveaux added.

But he emphasized that none of the current guidelines, either federal or state-wide, is required or even enforceable. It’s still unclear what recourse exists for employees who can’t work from home and remain concerned over potential coronavirus exposure.

“The governor’s order does not at all require employers to provide telework,” Malveaux said. And while Virginia’s Occupational Safety and Health program has reported “large” increases in COVID-19-related complaints, Malveaux said the agency’s limited staffing — and its own worries about exposing inspectors to the disease — makes it difficult to respond to every concern.

“I think they’re doing the very best they can do, but they’re stretched very thin,” he added. “VOSH has maybe 50 to 60 inspectors statewide. That’s not nearly enough to investigate everything, even before we had this pandemic.”

Northam, when asked how employees should address COVID-19-related workplace concerns, has repeatedly recommended that they talk to their employers before filing a complaint with OSHA.

As a state-run program, VOSH is responsible for handling and investigating complaints from the vast majority of workers across the commonwealth. Currently, the agency is addressing employee-driven complaints with employers themselves, wrote Jennifer Rose, the cooperative programs director for VOSH, in an email on Wednesday.

“VOSH informs the employer of the complaint allegation and requires a written response concerning the validity of the complaint allegation, any safety and health measures taken to date to protect employees against potential COVID-19 related hazards, and any measures to be taken in response to valid complaint allegations,” she added.

The complainant receives a copy of the response, and the employer is required to post it in a public space. Malveaux said it’s also possible that the agency would send out inspectors to particular egregious cases — busy construction sites, for instance, where employees are offered limited access to soap and running water.

But largely, there’s been little guidance on what could be considered a workplace violation. Malveaux said there’s a section of the national Occupational Safety and Health Act called the general duty clause, requiring employers “to provide a workplace that is free from recognized hazards that are likely to cause death or serious bodily harm.”

How closely that applies to COVID-19 has yet to be tested, Pollard said. If one employee spreads coronavirus to another in an open office, would that be a violation? What about nurses instructed to limit their use of personal protective equipment due to statewide shortages?

“You just don’t know the answer until it’s litigated or VOSH investigates,” he added. “But as far as the actions you can take as an employee, there hasn’t — to me — been much guidance.”


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