This client alert discusses the Coronavirus-related workplace safety mandates adopted by the Commonwealth of Virginia.
After it recently announced plans to issue the first statewide Coronavirus workplace safety rules in the U.S., the Virginia Department of Labor and Industry (DOLI) has published emergency temporary regulations under the authority of the Virginia Occupational Safety and Health (VOSH) Program. The regulations, which are expected to take effect during the week of July 27, 2020 after being published in a Richmond newspaper, will remain in effect for six months. Violations of these standards will subject Virginia employers to penalties under the existing VOSH penalty standards, which range from up to $13,047 for serious and certain other violations, to up to $130,463 for willful and repeated violations. This alert summarizes key provisions of the regulations, but Virginia employers should review the detailed regulatory requirements in full.
Assessing Exposure Risk and Identifying Applicable Regulatory Requirements
The regulations require covered employers to review hazards and job tasks at their places of employment and to classify them as “very high,” “high,” “medium,” or “lower” risk of exposure to the SARS-CoV-2 virus, which causes the disease known as COVID-19. Employers should use the following criteria:
A single place of employment may have job tasks or hazards at varying levels of exposure risk. The regulations contain some requirements applicable to all covered employers and also impose heightened requirements on employers with jobs at medium, high, or very high exposure risk.
Mandatory Requirements for All Employers
The regulations contain a number of requirements that employers in all exposure risk levels must follow.
Screening and notification requirements.
Procedures Governing the Return to Work
- A symptom-based approach excludes symptomatic employees known or suspected to have the virus from returning until three days post-recovery and ten days after symptoms first appeared. Recovery is defined as “resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.”
- A test-based approach excludes employees known or suspected to have the virus from returning until (i) the employee’s fever has resolved without the use of medication, (ii) the employee’s respiratory symptoms (e.g., cough, shortness of breath) have improved, and (iii) the employee has had two consecutive negative results, more than 24 hours apart, from an FDA-authorized test for the virus. The employee may not be required to pay for such testing if it is performed for purposes of return to work determinations.
- A time-based strategy allows an employee to return to work after ten days have elapsed since their first positive COVID-19 diagnostic test. If the employee develops symptoms after their first positive test, the test-based or symptom-based strategies above must be used.
- A test-based strategy allows an employee to return to work after they receive two consecutive negative results, more than 24 hours apart, from an FDA authorized test for the virus.
Other Exposure Controls
- The entrances to these areas must clearly state the occupancy limit and sanitation and physical distancing requirements.
- The employer must enforce the occupancy limit of these areas.
- If employees are not required to disinfect the immediate area in which they were just located, the employer must provide for cleaning at daily regular intervals.
- Hand sanitizer and hand washing facilities, where feasible, must be available to employees in these areas.
The regulations prohibit an employer from discriminating against any employee who exercises their rights under the standard. Employers must not discriminate, in any way, against an employee who voluntarily wears their own personal protective equipment if that equipment does not create a serious hazard for the employee or other employees. Additionally, discrimination is prohibited against employees who raise concerns about the safety of their workplace.
Additional Requirements for Medium, High, and Very High Risk Positions
The regulations specifically require employers with medium risk positions and with 11 or more employees, and all employers with high or very high risk positions, to develop and implement a written infectious disease preparedness and response plan within 30 days of the effective date of the regulations. Any employer with medium, high, or very high risk positions also must provide training to all employees working at the place of employment, regardless of employee risk classification, on the hazards and characteristics of the SARS-CoV-2 virus and COVID-19 disease, within 60 days of the effective date of the regulations.
Many Compliance Considerations
Virginia employers should ensure that they promptly take steps to comply with these mandatory regulations. The Virginia regulations overlap with but do not supplant employers’ obligations under federal law. Employers should continue to follow guidance from the federal Occupational Safety and Health Administration, as noted in Pillsbury’s client alerts of April 17, 2020 and May 20, 2020. In reopening to onsite work, employers should also comply with public health guidance from the Centers for the Disease Control and the Equal Employment Opportunity Commission, as described in Pillsbury’s client alert of May 1, 2020. Virginia’s new standards may have national implications, as they may prompt other states to follow suit. It has been reported that Oregon is already expected to implement a similar set of rules by the end of July.
For further information and to obtain advice and strategic input on your return-to-work planning, in addition to the listed authors, feel free to contact any of our Employment attorneys, including Jean Kuei, Rebecca Carr Rizzo, and Andrea Milano, who can also coordinate appropriate involvement of colleagues within the Employment Group, Workplace Safety attorneys Tom Van Wyngarden and Stephanie Angkadjaja, and the Pillsbury Crisis Management Team, including Aimee Ghosh.
Pillsbury is closely monitoring and analyzing the global legal, economic, policy and industry impacts of COVID-19. For our latest insights, visit our COVID-19 and Economic Impact Resource Center.