News & Insights
Jul 20, 2020
Virginia is now the first state in the nation to enact mandatory occupational safety standards regarding COVID-19. The Virginia Department of Labor and Industry’s health and safety board voted 9-2 on July 15 to adopt an “Emergency Temporary Standard” which requires employers to implement measures to protect employees from COVID-19. Virginia employers would face maximum civil penalties ranging from $13,494 per violation to $134,937 per violation of the Emergency Temporary Standard which could take effect as soon as July 27, 2020.
As Virginia employers evaluate the multitude of requirements included in the Emergency Temporary Standard, it is critical to begin assessing current workplace policies in preparation for implementation of more stringent health and safety protocols relative to COVID-19.
The Emergency Temporary Standard was drafted by the Department at the direction of Governor Ralph Northam, partially in response to a perceived lack of enforcement of federal workplace safety standards by the federal Occupational Safety and Health Administration.
Exposure Risk Level
To implement the infection control requirements enacted by the Emergency Temporary Standard, employers will be required to classify the risk in their workplaces of contracting and spreading COVID-19 (the “Exposure Risk Level”). The directive specifies four Exposure Risk levels for assessment: “Very High;” “High;” “Medium” and “Low.” A workplace may qualify under more than one risk category, based on the nature of workplace hazards and the job tasks performed. The Exposure Risk Level(s) applicable to an employer’s workplace determine the necessary safety standards that must be implemented to “control, prevent, and mitigate the spread of COVID-19 to and among employees and employers.”
Factors used to determine Exposure Risk Level include:
Very High Exposure Risk Levels apply to those job tasks or places of employment with high potential for employee exposure of known or suspected sources of COVID-19, including but not limited to specific medical, postmortem or laboratory procedures.
High Exposure Risk Levels apply to those job tasks or places of employment with high potential for COVID-19 exposure within six feet of known or suspected sources of COVID-19 which includes physical and mental healthcare workers, medical transport services, first responders and mortuary services.
Medium Exposure Risk Levels apply to those job tasks or places of employment that require more than minimal occupational contact inside of six feet with other employees, other persons or members of the general public who may be infected with COVID-19 but are not known to be carriers. Medium risk employers may include, but are not limited to, poultry, meat and seafood processing, agricultural labor, transportation services, educational settings, bars and restaurants, personal care businesses, gyms, exercise facilities and spas, and venues for sports, entertainment and other forms of mass gathering.
Low Exposure Risk Levels apply to those job tasks or places of employment that do not require contact within six feet with persons known or suspected to be infected with COVID-19, nor contact within six feet of other employees, other persons or members of the general public.
In addition to universal employer mandates, Very High Risk, High Risk, and Medium Risk employers will be required to implement additional workplace safety measures, depending on the applicable level of exposure risk.
Mandatory Requirements for All Employers
Regardless of the Exposure Risk Level, all employers within the Commonwealth will be required to:
The Virginia Occupational Safety and Health Program is responsible for enforcing compliance with the Emergency Temporary Standard in accordance with escalating levels of violation, ranging from “Other-Than-Serious” to “Willful.” The maximum civil penalty that may be assessed against a Virginia employer ranges from $13,494 per violation to $134,937 per violation.
In addition to health and safety standards, the Emergency Temporary Standard protects employees against retaliatory discharge or discrimination for rights asserted in accordance with the directive. The provisions also specify that an employer may not discharge or discriminate against any employee who voluntarily provides and wears his or her own personal protective equipment including, but not limited to a respirator, face mask, face shield or gloves. Further, employers are prohibited from discharging or discriminating against any employee who raises a reasonable concern about infection control related to COVID-19 with the employer, the employer’s agent or a government agency.
The Emergency Temporary Standard will take effect upon publication in a newspaper of general circulation in the City of Richmond, which the department anticipates will occur the week of July 27. The regulations will remain in place for six months, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.
Waller will continue to provide updates on to Virginia’s Emergency Temporary Standard as well as the development of state-specific COVID-19 occupational safety requirements throughout the country.
CLICK HERE TO SUBSCRIBE TO Coronavirus CONTENT
Whether a current or prospective client, we are here to help your business thrive. Please send us a message and we will respond to your needs as soon as possible.
SEND US A MESSAGE