News & Insights
Feb 17, 2021
Virginia is now the first state in the nation to enact permanent COVID-19 workplace safety and health standards.
In late January, the Virginia Department of Labor and Industry (DOLI) adopted the Virginia Occupational Safety and Health (VOSH) Program. The program promulgates a new standard that supersedes Virginia’s Emergency Temporary Standard from July 2020. The new standard governs all workplaces in Virginia except for those on federal property or related to Maritime employment, which are governed by OSHA Guidance.
The VOSH Program mirrors the emergency standard adopted in July with the following notable changes:
The new standard continues the four exposure risk levels for assessment: “Very High;” “High” “Medium” and “Low”. Determination of risk levels is task-based, and factors used in determining Exposure Risk Level still 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.
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.
Although most employees are in a single risk category, the law recognizes there may be various risk levels within a single workplace and some employees may be in multiple risk categories depending on their tasks.
Furthermore, employers must continue to notify employees who may have been exposed at the worksite within 24 hours of discovery of employees’ possible exposure. Employers must also notify the building or facility owner of any employees who have tested positive at the worksite within 24 hours of discovery of employees’ possible exposure. In providing such notifications, employers must keep the identity of infected persons confidential in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable laws and regulations.
The new standard also requires employers to implement a written preparedness and response plan if it has job tasks classified as “high” or “very high”, and/or if the company has 11 or more employees with job tasks classified as “medium” risk. Nonetheless, all employers should implement written response plans for all of their employees as a matter of best practices.
Moreover, the new standard continues to mandate measures such as appropriate social distancing, record keeping, COVID-19 training, and ensuring employees have easy, frequent access to use soap, water, and hand sanitizer during work.
It is worth noting that the new standard takes a very strong stance against discrimination and retaliation. If an employee makes a comment or complains about a COVID-related situation in the workplace, the employer cannot take any action against the employee for voicing their concern, even if the employee makes those comments on social media, to the media, or in other public venues.
Failure to comply could be costly, as employers may be subject to fines up to $12,726 for serious violations, and up to $127,354 for willful violations.
The DOLI will be working alongside businesses and labor communities to achieve compliance across the state, and DOLI Commissioner Ray Davenport believes “[t]hese scientifically based standards will help keep Virginia’s workers and their families safe during the COVID-19 pandemic.”
Employers should also continue to monitor developments in federal law, which may use the VOSH Program as a roadmap or institute additional requirements.
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