On July 15, 2020, in response to Governor Northam’s Executive Order No. 63 directing the issuance of emergency regulations to control, prevent, and mitigate the spread of COVID-19 in the workplace, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board voted 9-2 to approve extensive emergency workplace safety standards in response to COVID‑19.  These new occupational safety and health requirements include a broad array of requirements for all employers in Virginia as well as additional requirements for employers with job positions in certain risk categories.

DOLI has indicated that it expects the regulations to be published this week.  With exceptions for delays of certain training requirements by 30 days and development of an infectious disease preparedness and response plan by 60 days, they will become effective immediately upon publication.).

Job position risk categories & employer assessment

The new regulations require all employers to assess and classify each job position’s risk exposure as (i) very high, (ii) high, (iii) medium, or (iv) lower risk, with varying requirements for each category.

  • Very high-risk positions involve exposure to known or suspected sources of, or persons infected with, COVID-19 (e.g., those handling lab samples, performing aerosol-generating procedures, etc.).
  • High-risk positions involve the high potential for exposure inside six feet to known or suspected sources of, or persons infected with, COVID-19 (e.g., healthcare workers and support staff treating COVID-19 patients, first responders, etc.).
  • Medium-risk positions involve more than minimal occupational contact inside six feet of others who may be infected with COVID-19, but who are not known or suspected to have COVID-19. This risk category likely covers the bulk of workers in Virginia and the regulations provide a long list of examples ranging from those working in food-processing plants to retail stores and manufacturing, among others.
  • Lower-risk positions involve minimal occupational contact with others or positions that can achieve minimal occupational contact through engineering, administrative, and work-practice controls. Although the regulations provide a number of ways employers can implement occupational controls to qualify as lower risk, the use of face coverings is not an acceptable control to qualify a position as lower risk.

Mandatory requirements for all employers

Under the new regulations, all employers must undertake a wide range of specific measures to protect employees from workplace exposure to COVID-19, such as:

  • Establishing employee self-monitoring and implementing policies and procedures for employees to report symptoms;
  • Barring employees who are known or suspected to be COVID-19 positive from work until cleared using specific symptom-, test-, or time-based strategies extensively detailed in the regulations (employers may not use serologic test results to make decisions about employee status);
  • Ensuring flexible sick-leave policies and that employees are aware of such policies;
  • Establishing a HIPAA-compliant system to receive reports of positive COVID-19 tests by employees, contractors, or temporary employees present at the place of employment within the previous 14 days from the date of the positive test;
  • Implementing specific notification actions if any person present at the worksite within the previous 14 days tests positive, including notice within 24 hours to employees, other employers, building owners, and the Virginia Department of Health (also DOLI if 3 or more employees test positive within a 2-week period);
  • Ensuring employee access to their exposure and medical records;
  • Implementing physical distancing policies and procedures, including providing certain announcements/communication, posting signs, decreasing workplace density, and restricting access to common areas;
  • Complying with respiratory protection and personal protective equipment (PPE) standards when necessary, including in vehicles or where social distancing cannot be maintained, unless detrimental to the employee’s health; and
  • Complying with sanitation and disinfection standards, including providing cleaning and disinfecting supplies for certain employees, implementing regular cleaning protocols, and following industry hazard communication standards.

Within each of these categories, the regulations outline additional detail and mandatory practices.  Further, the regulations do not replace existing requirements from the Governor or other public health officials, but rather specifically require employers to comply with any applicable executive order or order of public health emergency.

Additional requirements for certain risk categories

The regulations contain additional requirements for employers with job positions in the very high-, high-, and medium-risk categories.  These requirements include implementing particular engineering, administrative, and work-practice controls, PPE requirements, a written workplace hazard assessment, and employee safety training.  In addition, employers with positions classified as very high or high, or as medium with 11 or more employees, must develop and implement a written infectious disease preparedness response plan.

Enforcement and penalties

These regulations are intended to supplement and enhance existing state and federal occupational safety and health requirements and will be enforced by DOLI’s Virginia Occupational Safety and Health Program (VOSH).  Overall, failure to comply with VOSH standards may result in potential criminal penalties as well as civil penalties ranging from approximately $13,000 per violation to more than $130,000 per violation if willful and/or repeated.

Virginia employers should immediately review these regulations to determine how their operations may be impacted.  While DOLI has indicated that it will provide guidance and training materials to assist employers in complying with these regulations, to date the agency has not done so.

If you have any questions on these requirements, need assistance developing policies and procedures to comply with these regulations, or have other questions regarding your workforce related to COVID-19, please contact Betty Graumlich at bgraumlich@reedsmith.com, Ben Patton at bpatton@reedsmith.com, Mark Passero at mpassero@reedsmith.com, or the Reed Smith lawyer with whom you normally work.