Virginia is the first state in the nation to enact a permanent workplace safety standard for COVID-19. This permanent COVID-19 standard became effective Wednesday, January 27, 2021 upon publication after review and approval earlier in January by Governor Ralph Northam and the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board. While the permanent COVID-19 standard leaves in place the bulk of requirements contained in the previous temporary emergency COVID-19 workplace safety regulations, there are a number of key revisions of which employers should take note. Specifically, the permanent standard:
- Removes the test-based return to work strategy and revises the time/symptom-based return to work strategy. Now, the standard only requires that 10 days have passed since symptoms first appeared and 24 hours have passed since being fever-free with other symptoms improving (this aligns with current CDC guidance).
- Reduces the reporting requirement to the Virginia Department of Health (VDH) so that employers are only required to report when there are two or more confirmed positive COVID-19 cases at the worksite within a 14-day period (previously reporting was required for only one confirmed case).
- Revises the definition of “face covering” to require that it be made of two or more layers and also clarifies that a face shield is not a substitute for a face covering.
- Now defines “minimal occupational contact” as “no or very limited, brief, and infrequent contact with employees or other persons at the place of employment.” Examples provided are remote work, passing another person in a hallway, and telemedicine, among others.
- Replaces previous American National Standards Institute (ANSI) air-handling requirements with updated air-handling standards to increase airflow and filtration at worksites.
- Now provides a list of potential hazard controls for employers to put in place where multiple employees are occupying a work vehicle for work purposes.
- Removes requirements in the earlier regulations requiring employers to implement certain contingency plans and encourages flexible sick leave policies.
- Continues to require that certain employers develop and implement written infectious disease preparedness and response plans as well as provide training on workplace safety and the regulations. The deadline to develop such written plans and conduct training under the new permanent standard is March 26, 2021.
- Does not provide any “safe harbor” for employers abiding by CDC guidelines (as opposed to the more stringent DOLI regulations), however the regulations indicate that DOLI will consult with the State Health Commissioner for advice and technical aid before making a determination related to an employer’s compliance with CDC guidelines.
- Limits enforcement actions against employers who make a good faith effort to provide personal protective equipment where supplies are limited and not available on commercially reasonable terms.
- Removes language in the earlier regulations that addressed the situation where there is a conflict with the regulations and the governor’s orders.
Although the COVID-19 standard is permanent, the regulations require DOLI to meet within 14 days of the expiration of the governor’s COVID-19 declaration of public emergency to determine the continued need for the standard. Overall, these workplace safety regulations are intended to supplement and enhance existing state and federal occupational safety and health requirements. The permanent COVID-19 standard does not address COVID-19 vaccination nor does it provide any mechanism for continued alignment with the CDC’s frequently changing guidelines.
Virginia employers should immediately review these regulations to determine how their operations may be impacted and what practices and policies need to be updated to achieve compliance. Failure to comply with the standards may result in potential criminal penalties as well as significant civil penalties. DOLI has indicated that it has received over 13,000 complaints around workplace safety due to COVID-19 and conducted more than 100 workplace inspections. Employers can expect such inspections and other enforcement action to continue.
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, Mark Passero, Noah Oberlander, or the Reed Smith lawyer with whom you normally work.