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First state enacts permanent COVID-19 occupational health, safety rules

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:

• If an employer has two or more employees at the workplace test positive within a 14-day period, the employer must notify the Virginia Department of Health (VDH). Employers must report to the VDH within 24 hours of becoming aware of such cases, and the reports must include the name, date of birth, and contact information for each case. If an employer has three or more employees at the workplace test positive within a 14-day period, the employer must notify the Virginia Department of Labor and Industry (DOLI) within 24 hours of the test results.

• A proper face covering must have at least two layers of washable fabric, fit securely, and cannot have any vents, valves or gaps. Employees may not use face shields as a substitute for a face covering.

• Limit the need for employees to share work vehicles wherever possible. If such limitations are not feasible, employers should provide access to N-95 masks and fresh air ventilation (e.g., utilize windows) to prevent recirculating cabin air.  When physical distancing cannot be maintained, employers must establish procedures (e.g., occupancy limits and alternate seat assignments) to maximize separation between employees during travel.

• The new standard’s symptom-based return-to-work requirement provides that employers are prohibited from allowing employees, or other persons, known or suspected to be infected with COVID-19 to report to or remain at the workplace until cleared for return. Symptomatic employees known or suspected to be infected with COVID-19 are excluded from returning to work until all three of the following conditions have been met: (1) the employee is fever-free for at least 24 hours, without the use of fever-reducing medications; (2) respiratory symptoms, such as cough and shortness of breath have improved; and (3) at least 10 days have passed since symptoms first appeared. Asymptomatic employees may return to the workplace after at least 10 days have passed since their positive test.

• Employers must limit access to common areas, or close them altogether. Additionally, employers must clean and disinfect all common spaces and frequently touched surfaces at least once during or at the end of the shift. Where multiple shifts are employed, employers must clean and disinfect such areas no less than once every 12 hours.

• Employers will not face enforcement actions for failure to provide personal protective equipment (PPE) required by the new standard if such PPE is not readily available, as long as the employer makes a good faith effort to acquire and provide such PPE when it does become readily available. Thus, if employers are not able to secure enough PPE to provide for their worksite, they should document the reasons why obtaining PPE was difficult.

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:

• Job tasks being undertaken;
• Work environment (e.g., indoors or outdoors);
• The known or suspected presence of COVID-19 or a person with COVID-19 in the workplace;
• The number of employees and/or other persons in relation to the work area;
• The working distance between employees; and
• The duration and frequency of employee exposure through contact within six feet of other employees and persons, including shift work exceeding eight hours per day.

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.

The VOSH Program can be found here. Infectious disease preparedness and response plan templates and training guidance are available here.