State delegate joins suit to overturn COVID-19 regulations

As the COVID-19 virus has spread across the country, various states have tried various means to control the pandemic. Virginia’s governor Ralph Northam has led the way with tighter restrictions on many businesses, especially restaurants and similar establishments. In an effort to either repeal the state’s COVID-19 safety regulations or soften their impact, the Virginia Manufacturers Association commenced a lawsuit to challenge safety regulations adopted by the state’s Safety and Health Codes Board in July. Now, a state delegate has joined the lawsuit on the side of the businesses.

The legal issues

The state delegate who recently joined the case admitted that some measures might be “in order” but that the governor’s actions go too far. The lawsuit alleges that the state’s temporary rules are “impermissibly vague” and that the board failed to follow the state’s administrative processes in considering and adopting the rules. The lawsuit also asserts that the temporary rules incorporate several executive orders issued by Gov. Northam that are alleged to be “illegal” executive orders. Among the allegedly illegal orders are rules requiring masks in indoor activity and phased social restrictions.

The temporary rules specify a maximum penalty of $13,000 for a single violation and up to $130,000 for repeat violations. The rules also call for whistleblower protection for employees who notify the department of Labor and Industry of alleged violations.

The Governor’s response

Gov. Northam said he imposed the rules because he thought that the decision of the Occupational Safety and Health Administration to refrain from imposing national regulations was a mistake. The Northam administration has thus far successfully defended 15 lawsuits challenging the governor’s authority to use executive orders to impose regulations intended to limit the spread of the virus.

The long view

This lawsuit is far from final resolution. Media reports of the case do not clearly describe the case’s procedural status. Because it involves very few, if any, genuine issues of fact, the case is likely to be resolved through motions raising and arguing the various legal issues. Any business owner who feels that the regulations are too harsh or procedurally flawed may wish to consult an experienced business and employment attorney for advice on whether an intervention in the case is advisable.