Virginia Adopts First COVID-19 Workplace Safety Mandates

As the first regulations of their kind, the Workplace Rules may have significant implications for the Virginia business sector. For example, while the federal Occupational Safety and Health Act mandates that employers comply with a general duty to provide employees a “place of employment… free from recognized hazards that are causing or are likely to cause death or serious physical harm,” the details of how to meet that general duty have been advisory in nature. As noted in Pillsbury’s client alerts of April 17, 2020 and May 20, 2020, the U.S. Occupational Safety and Health Administration (OSHA) has issued guidance documents on measures employers should take to protect employees from the virus that causes COVID-19, rather than publishing specific regulatory requirements. Critics assert that those recommendations are not sufficient to ensure protection of workers. The Virginia standard, however, prescribes enforcement penalties of up to $130,000 for non-compliance. In addition, the standards in these rules may have broader economic 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.

Some industry groups argue that these measures are unnecessary and burdensome given existing federal guidelines, while others fear that they will only exacerbate the current financial challenges caused by COVID-19 by raising the cost of doing business in Virginia and harming the commonwealth’s economic recovery. Nicole Riley, Virginia’s director of the National Federation of Independent Business, has highlighted these concerns, stating that “[w]ith this vote, Virginia’s repeated ranking as a top state for business has evaporated, we won’t be able to compete with other states, and our economic recovery will be put in low gear.”

Key Components of these New Measures

While the details of the Workplace Rules have not yet been published, the key elements will include:

• If an employee tests positive for the virus, the employer must notify other employees within twenty-four hours.
• Anyone suspected of being exposed to an infected individual will not be able to return to work for either ten days or until the exposed employee receives two consecutive, negative test results.
• An infected employee who tests positive for virus antibodies may return to work, but employers are not necessarily required to allow the employee back to the workplace.
• Employers must require all employees to comply with physical distancing measures and must require face coverings for all employees who are in customer-facing roles or positions in which maintaining social distance is not possible. Employers must also provide frequent access to hand-washing or hand sanitizer and regularly clean high-contact surfaces.

The Workplace Rules will also contain antidiscrimination provisions prohibiting employers from retaliating or discriminating against workers who voluntarily wear their own personal protective gear or express concerns about safety measures, including in the workplace, to government agencies, or to the public. These provisions are in addition to Virginia’s whistleblower protection law, enacted July 1, which codifies a private right of action for retaliation based on an employee’s reporting of any violation of federal or state law or regulation. Va. Code § 40.1-27.3(A)(1).