Facebook Live 7/8- Answers

Good afternoon everyone and thank you for joining us. I apologize for the delay, there were a number of legislators advocating for K-12 education 5 days a week this fall. We are asking the Governor to withdraw his guidelines because they are not helpful, and it’s making it almost impossible for us to get our kids back to school. The American Academy of Pediatricians has come out with a forceful statement saying that is an imperative for our kids’ wellbeing. There is much more risk in our kids not going back to school, than to go back to school with COVID. I’m going to do a quick overview because we’ve heard so much about spikes across the country, and I want to touch on that.

As this conversation evolves, there are a few important data points. One data point is hospital occupancy, which you’ll see in the table we post. It is important to know the hospital capacity for COVID because hospitals are usually occupied. We can look at occupancy this year compared to last year, and most hospitals are either below that rate, or back on par. The analysis is that there is some increase in positive tests and percent positives. The best scientists are saying that is normal and to be expected. People under 55 are going to get this virus, more people are going to test positive and get sick, but they won’t need the hospital, and that is part of the path toward herd immunity. An increase in percent positive is not important alone, in order to call out that data, you have to look at the demographics of age. Most of the new positive tests come from young people who are not sick and who don’t need the hospital.

It’s always staggering to say that there are almost 130,000 deaths in the U.S. from COVID, and that’s a serious health issue. Compared to the rest of the world, we’ve had about 40 per 100,000 deaths in the U.S., the U.K. is 67 per 100,000, France is 45 per 100,000 and Italy is 58 per 100,000. We’ve done a pretty good job handling this pandemic.

As you know, I’m trying to stay on top of how we return to a robust economy, and to return Virginia to where we were before we decided to stay home. Now that we’re going back, I want to make sure we go back wisely, and that’s not always happening. Today, we’re talking about businesses, and businesses are potentially being slapped with outrageous regulations that fully exceed what has been asked of them nationally. This is going to hurt our businesses and our economy, it’s going to hurt our return to normalcy, and one of the reasons one of my friends is here with us today is because it is going to hurt our supply chain. The whole point of us staying home was so that we’d be able to get our supply chain caught up and have the capacity to take care of things. That supply chain has been working for the past 16 weeks, and it has been doing so safely.

Today I’m going to start by turning it over to Mr. Malveaux, he represents industrial employers on the Virginia Safety and Health Codes Board, this is the board looking at these regulations. He is a former Virginia Labor Commissioner. He has been looking at business guideline standards, public sector and private sector, for all of this professional life. He is going to give us an update on where we are on these guidelines, why he’s worried about them, and then we’ll turn it over to Ward Best who’s been making our supply chain work here in our own neighborhoods, and talk about what this means to him.

Courtney: Thank you Senator, I’m pleased to talk to you about this. As Siobhan mentioned, I serve on the Safety and Health Codes Board, and I am the head of the agency OSHA, Occupational Safety and Health Administration in Virginia. I serve on the board that considers regulations. The board has moved forward with regulations for a standard that is COVID related. Our agency already has the power to enforce existing regulations and standards from OSHA, and the guidance we’re getting from the CDC and from industry. Unfortunately, the agency isn’t using the tools it has. There is the General Duties Clause, if there isn’t a standard for something, the agency still can go ahead and issue a citation if there is a recognized hazard. The novel Coronavirus is, by definition, novel. This is exactly why we have a general duty clause. There has been a rush by some advocacy organizations to push for, in my view, extremely heavy handed regulations for poultry and meat processing facilities. The agency was going to review emergency standards for those industries, and that is problematic.

The laws that have been passed on labor and employment matters are being questioned by my law firm. Virginia is the new California, and I’m sad to say that we are surpassing California with these standards. This is a first in the nation practice. The agency is not using the authority it currently has to enforce. If employers are not protecting their employees from COVID, there is guidance already there that can be enforced.

Senator Dunnavant: This is very scary. This applies to every business. The problem is that many of these businesses have been functioning for 16 weeks with guidelines that have already been put on them, and they are now tangled up in figuring out how they’re going to restructure everything. This is costly, and it is really a challenge for every employer out there. Tell us about who this would affect.

Courtney: Everyone who employs someone is going to be affected. This covers all employers, not just manufacturing and construction. Unfortunately the administration pushed forward on this, and I pushed and advocated for public hearings so we could hear from stakeholders and get the buy in from employers who have to make this work. Unfortunately they are not listening to any employers at all, they are pushing forward on this. They’re calling it an emergency, but this process has been drawn out. This has been going on for two months, our next meeting isn’t scheduled, and we don’t have a day to listen to stakeholders. That is a fundamental problem with the government operating that way, with good reasons.

For example, Ward and I were talking about trucking. Employers have to trace the localities all suppliers have been to, to know where the risk of COVID is. They have to then determine if someone could come onto the premises before entering. If you’re in trucking, there are employers who could have 50 suppliers a day coming in from everywhere. This is completely unworkable.

Another example, I wash my hands like you’re supposed to, for at least 20 seconds. I also use hand sanitizer because I think it’s safer. We just had a huge shortage of hand sanitizer, and if we’re hit with this again in the fall, we’re facing another shortage. The agency is requiring both. This is the best practice, but it shouldn’t be an absolute requirement, it doesn’t make sense. They’re not working with the business community. They’re coming up with high in the sky proposals that they think everyone else should be doing, and that’s not how this should work. The business community is completely shut out of the conversation.

Senator Dunnavant: This is what frustrates me. I’m all about safety, wearing masks, washing hands and making sure people don’t die from COVID. People are going to get it, some people are going to get sick, but I’m all about safety. I wish the state was, this is about a desire to control other people without actually setting the outcome of safety and economic opportunity. It doesn’t have to be one or the other, I want both. You can have safety and be economically sound. These guidelines that have been handed down go beyond OSHA itself or the federal government or the CDC. I can’t get my head around why the state would do something unnecessary, obstructive, and detrimental to our supply chains and our businesses.

Courtney: I’ll give you another example. The agency can now cite employers if they’re not using non-punitive sick leave policies. They don’t define what a non-punitive sick leave policy is. We have the Family Medical Leave Act, that is now federal law. We also have the Families First Coronavirus Recovery Act, that is federal law. The leave policies are spelled out there. It’s not OSHA’s job to enforce sick leave policies. I advise clients all the time to see if they can implement flex policies the best they can. The agency is stepping way outside it’s standards and purpose by trying to demand all employers to use sick leave policies to their liking, or they get cited. It doesn’t make sense, it’s not how the agency should work.

Senator Dunnavant: I’m going to switch gears to Ward Best. Ward and I go way back. He is with Atlantic Bulk Carrier Group, and Chairman of the Virginia Trucking Association. We’ve talked a few times about all the things he’s done to keep his workplace safe, and to make sure we have the PPE and the supply chain we need. They used CDC and OSHA guidelines, and they used common sense. Tell us about what you’ve been doing, how it’s been going and what you think about the new guidelines that may interfere with you doing your job.

Ward: Thank you Senator for having me. We have been operating throughout this year, through the start of this pandemic, and the highs and lows. We continue to operate to keep the supply chain open and to keep the economy running. The primary thing we’ve done has been to apply common sense. We know, in trucking, we’re already one of the most heavily regulated industries in the United States. All of the good carriers I work with put safety as a paramount in their day to day operations. That did not change with the Coronavirus. This was something else we needed to deal with to continue to move goods, and supply services to keep the economy running. We apply common sense. We took the recommendations from the CDC, which haven’t changed much. These are common sense, such as washing hands, practicing good hygiene, and covering your mouth when you cough. The initial recommendation was to stay home if you’re sick, please do so, that keeps you from spreading COVID. We re-emphasize that we need to exercise good hygiene and good common sense. While we have had a number of people tested, all of those people tested were because of potential secondary contact. We have been able to operate safely up to this point, and thankfully we haven’t had anyone get sick. Our goal is to continue to operate and to continue to help the economy keep growing and moving while we progress through this pandemic.

As far as regulations go, I learned about them early on from the Virginia Trucking Association. I read through them and as Courtney said, they are poorly written, and they have been put in place as a one size fits all. Businesses all differ, everyone knows their own folks and their customers. Doing something like this takes away our ability to deal with the specifics that we know will work best for our employees. These regulations do not do that.

Senator Dunnavant: How can constituents get involved and make a difference? To summarize, we have big government creating regulations that are outside the actual powers they have in these emergency situations. They are creating penalties for businesses where someone is going to penalize or fine them, which is more government reach into your business. None of this is to protect employees or to decrease the spread of COVID. The only thing it does is allow the government to interfere with getting the job done. From Courtney earlier, the private sector has been the most innovative and nimble in coming up with safe practices.

Courtney: At this point, I wish the administration was more attentive to people’s concerns. This isn’t how the government should work. You could write to the administration and to your legislators to encourage them to open this process up to stakeholders. There are other really smart people who should be part of this conversation, and there should be people who were affected by this to be part of the conversation. I think insisting that the Governor have public input on this is important. Before I became Commissioner, there was a tree-trimming standard, and the agency worked with industry to put together something with buy-in.

For example, ObamaCare comes under fire because it was passed by one party. If you don’t work with both sides, or even take time to listen to those who know better, you’re going to get bad practices. Write to your legislators and tell them they’re pushing for a flawed product at the end.

Ward: We welcome, and hope to have the chance to talk about these things and participate in developing these rules. We want to make sure we can have better standards across the board.

Senator Dunnavant: Thank you both so much. I really wanted to talk about this today because this kind of thing scares me, because no one really knows it’s happening. There is some coverage by the press, but there’s not real diligence into what is going on. We have overreach of the government, without public comment, and without engagement from the stakeholders. We have government perpetuating government for no value or purpose. This is not to improve safety, not to improve the economy or support the supply chain. I want my constituents to know about this because we have to be vigilant. I have been talking to others, including Brett Massey at the Manufacturer’s Association, we’re going to figure out what we can do. Everyone needs to be hypervigilant because if it’s happening in labor and in schools, it’s probably happening everywhere in the administration, and we need to hold them accountable.