Industry seeking clarity in new workplace oversight powers that could spread to other states
Virginia recently became the first state to impose enforceable COVID-19 safety requirements in the workplace — not just guidelines — which has the trucking industry scrambling to figure out how the new law will affect drivers and operations.
The final rule, made public July 17 by the Virginia Department of Labor and Industry (DOLI), applies to broad sections of private industry, including trucking.
All companies based in Virginia will be required to classify employees by risk level (very high, high, medium and lower) based on workplace hazards and job tasks, establish policies for employees to self-monitor for COVID-19 signs and to report symptoms, and put in place procedures to prevent employees who are known to have or are suspected of having COVID-19 from infecting co-workers.
In addition, employers of people in “medium risk” jobs that require being closer than 6 feet to other employees or the general public — which includes truck drivers — “must develop and implement a written infectious disease preparedness and response plan,” according to the regulations. Employers have 60 days from the rule’s effective date, which is expected the week of July 27, to develop the plan.
A DOLI official was not immediately available to comment on how the new rule would apply specifically to trucking. Dale Bennett, president and CEO of the Virginia Trucking Association, is seeking more clarity from the state on what he says could be a major regulatory burden for his members as well as shippers and receivers.
“If you have motor carriers or trucking companies that either do business in Virginia or have facilities in Virginia and you haven’t paid attention to this, you need to wake up,” Bennett told FreightWaves. “Anytime you talk about a new regulation, there’s going to be some cost associated with that. There are now certain requirements and responsibilities on the employer to report when employees test positive. These aren’t just guidelines anymore.”
Bennett said that because of the structure of less-than-truckload (LTL) operations, which typically rely on a network of terminals in which there is closer contact among drivers and receivers, LTL carriers could be more exposed to the new oversight. LTL carriers UPS Freight (NYSE: UPS), YRC (NASDAQ: YRCW) and Estes Express all have extensive operations in Virginia.
“You could also have truckload carriers that may not have facilities in Virginia, but once their driver steps out of the cab inside this state there may be parts of these regulations that affect them,” Bennett said.
DOLI can enforce the rules with fines for noncompliance ranging from $13,000 to $130,000 for repeat offenders, according to the law firm Venable. Another law firm, Fisher Phillips, warned that the state “may exercise their power to shutter an employer’s operations if necessary to ensure employee safety.
While the rules are set to expire six months after they become effective, the state can subsequently adopt permanent rules.
“To make the rules permanent, the state would have to go through a more formal rulemaking process than was used in putting out the temporary rule, in which case I would suspect business groups would make a push to scale back or get rid of them,” Venable attorney Tom France told FreightWaves. “If the pandemic is under control by then, there may not be a need to consider making them permanent.”
The Virginia regulation also “sets the groundwork for other [states] to adopt similar enforcement measures, including California, North Carolina, Oregon and Michigan,” warned Fisher Phillips.
Bennett is polling his members as to how they see the rule affecting them. He plans to compile and submit that information to state regulators for clarification. He is anticipating that the state will provide more precise information on how trucking companies should be interpreting the rules before they take effect.
“We haven’t gotten a lot of feedback from members, so maybe they’re not that concerned. But they will be when the Virginia OSHA guy comes knocking on their door and starts issuing fines.”