RICHMOND — Gov. Ralph Northam has directed the state labor commissioner to develop emergency workplace regulations addressing on-the-job safety concerns that have prompted thousands of employee complaints since the COVID-19 pandemic began.
“These new workplace safety standards will apply to employers and should include use of personal protective equipment, sanitation, record keeping of incidents and hazard communication,” Northam said last week.
His administration said Northam also wants the new rules to address masks in non-public-facing businesses and require employers to notify employees if a co-worker tests positive for the virus.
The announcement represents a significant shift from the voluntary guidelines Northam put in place when he first declared a state of emergency in March. The executive order recommended but did not mandate precautions like social distancing and enhanced cleaning at workplaces allowed to remain open, a range of businesses that includes offices, construction sites and factories.
For the past several months, the lack of clear, enforceable rules at the federal and state level prompted complaints from a wide range of advocates, who argued the state needed to take more concrete steps as it begins to reopen. In the case of the state’s poultry industry, which has seen massive outbreaks at plants operated by Tyson Foods and Perdue Farms, the Charlottesville-based Legal Aid Justice Center already had submitted a formal petition for emergency safety rules.
“I think everybody is passing the buck. … People are going to do the bare minimum when something is a recommendation,” Dyana Forester, the director of political and community affairs for UFCW Local 400, which represents grocery store employees, said during a recent roundtable discussion.
Northam defended the voluntary approach as recently as two weeks ago, reiterating, as he has throughout the pandemic, that workers concerned about their safety should approach their supervisors with their concerns and, if unable to reach a resolution, file a complaint with the federal Occupational Safety and Health Administration and the Virginia Department of Labor and Industry.
State regulators say they logged more than 3,000 such complaints as of May 1 and investigated more than 300. These complaints came from workplaces ranging from car dealerships and big-box stores to offices and government agencies, including a division of the Virginia Department of Health, whose employees reported they were being asked to inspect health care facilities without being provided protective equipment.
While Northam said he was generally satisfied by the state’s response so far, his chief workforce adviser, Megan Healy, said it was the petition for poultry plant regulations that led Northam to pursue broader rules.
“The governor said, if you’re writing these standards, let’s do it for all workers and not just poultry workers,” Healy said.
Poultry plant outbreaks
Testing by Tyson Foods and Perdue Farms at two large facilities on the Eastern Shore found that almost one in five employees were positive for COVID-19. Far less is known about Virginia’s other major meat processing hub, the Shenandoah Valley around Harrisonburg, which is home to seven large facilities with thousands of workers.
Laura Kornegay, health director of the Central Shenandoah Health District, said that since early March her agency had been providing the plants “ongoing feedback regarding environmental and administrative measures to reduce risk of transmission of disease in the plants” and had seen a “downward trend in the epidemiology curve for each.”
However, because Virginia will not release case numbers for individual plants, citing a section of state code that defines facilities as individuals, data specific to these plants’ trajectories are not publicly available.
That’s a problem, said Jason Yarashes, an attorney with the Legal Aid Justice Center who has been closely involved with advocating for farm and poultry workers during the pandemic.
“We’ve got workers out there crying for more information,” he said. “If things are so excellent, why do we have a few brave workers risking their [jobs] to come out and speak out against the conditions? Why do we have people quitting in the middle of the pandemic when there’s no other jobs out there?”
Neither the Virginia Occupational Safety and Health Program nor the federal Occupational Safety and Health Administration “have issued any enforceable standards to protect workers during pandemics,” the petition seeking emergency rules argues. “Rather, only recommendations and suggested guidance have been issued, providing no oversight over employers and no protection to employees.”
Investigating by phone
The state has not conducted any onsite inspections in any of the complaints it has closed, instead responding to employee complaints it deems valid by conducting what it calls “phone/fax investigations.” The approach consists of a letter notifying the employer of the hazardous conditions that have been reported and requires the business to respond within two weeks with proof that it has addressed the problem.
A typical complaint, in this case submitted anonymously by an employee at an Amazon warehouse in Springfield, reads: “Two employees in the warehouse tested positive for COVID-19; however, the facility was not disinfected and employees were not provided personal protective equipment all the while working within six feet of one another.”
In response, Amazon’s workplace health and safety manager, Sean Fleming, wrote that in fact three employees had tested positive, but the company said its facilities were regularly cleaned, masks and gloves had been provided and the facility had been reconfigured to keep employees farther apart. He attached an outline of cleaning policies, as well as pictures of masks, sanitizer and handwashing statements as evidence.
The case was closed, with the state inspector writing, “Based on our review of the information you provided, we have determined that our file on this matter can be closed and no further action on this complaint is anticipated at this time.”
It came from VDH
A less typical complaint came from inside the Virginia Department of Health. According to state labor department records, an employee complained “state surveyors inspecting various types of health care facilities all over the state are exposed on a daily basis to patients with active infections. … The employer does not provide personal protective equipment for surveys. The surveyors are reliant upon the facility they are inspecting for PPE. The facilities do not always have adequate supplies/PPE or even hand soap.”
The response from the VDH, which came March 23, said that federal guidance issued after the complaint was filed directed the state to cease on-site inspections, but that the department had also since obtained protective equipment for its workers and, as such, considered the complaint invalid.
As in the other cases, workplace regulators deemed the response satisfactory.
All the employers investigated by the state were required to post a copy of the complaint letter on a bulletin board where employees could read it, but otherwise the agency initiated no enforcement action in the 156 investigations it had closed as of May 6.
“So far, the response by employer responses have been deemed satisfactory,” wrote Jay Withrow, a lawyer with the Department of Labor and Industry.
Withrow said the department does already have the authority to take action against an employer if necessary — namely through a general OSHA regulation that requires workplaces to be free from hazard — but in a sampling of complaint files reviewed by The Virginia Mercury, the agency told employers it was investigating that “because of the fluidity of the situation and evolving responses of government to the COVID-19 pandemic, we do not consider it appropriate at this time to complaints such as yours,” though it wrote that could change in the event of recurring hazards.
Penalties to be finalized
Healy, Northam’s workforce adviser, said adopting state regulations will establish clear rules for businesses to follow and penalties ranging from fines to a shutdown if they don’t.
“It’s really to make the workers feel better, because they feel like there’s nothing that can be done,” she said. “Yes, currently we are working with employers, but it just feels better to have an extra tool.”
It remains to be seen what the regulations will include and whether they will be adopted.
Northam has no formal role in the process, but directed his appointee, Commissioner of Labor and Industry C. Ray Davenport, to draft rules that address protective equipment, sanitation and infection reporting.
“We’ve had a lot of workers complain that if someone is infected with COVID-19, your employer is not required to tell you,” Healy said.
Once drafted, the rules will go to the state Safety and Health Codes Board, whose members are also appointed by the governor. If the board adopts the regulations on an emergency basis, they will go into effect as soon as they are publicly advertised.
The board does not currently have a meeting scheduled, but Healy said she hopes it will meet during the second week of June.
The proposal is already drawing strong reactions. Hobey Bauhan, president of the Virginia Poultry Federation, said additional regulations aren’t necessary because the industry is already implementing voluntary guidelines and the number of cases is dropping.
“The trajectory is positive. The cases are down from a few weeks ago, and the number of workers quarantined at home is down. Poultry plants have been successful at following government guidelines to implement protective measures,” he said.
Advocates for employees applauded the effort. Daniel Kalish, the managing partner of HKM Employment Attorneys, has been operating a hotline for employees with COVID-19-related workplace concerns. He said two frequent complaints: social distancing and masks.
“Those are the two things causing a lot of angst: No one is social distancing and no one is wearing masks,” he said. “I cannot emphasize enough how much any clarity would help. It’s really hard when customers, employees and business owners have no idea what they should be doing.”