The Commonwealth of Virginia recently became the first state in the nation to enact enforceable workplace safety standards to address the risks of coronavirus (COVID-19).
The Virginia Health and Safety Codes Board voted on July 15 to finalize a regulation that will be enforced by the Virginia Occupational Safety and Health (VOSH) program of the Virginia Department of Labor and Industry (DOLI): Section 16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‐19.
The standard will apply to most private employers in Virginia and will become effective upon final publication, which is expected to occur during the week of July 27, 2020. It will expire within six months of publication, or upon the expiration of the governor’s state of emergency declaration, or the enactment of a permanent standard.
To date, the federal Occupational Health and Safety Administration (OSHA) has not adopted any new nationwide standards related to COVID-19. In the absence of such guidance, Virginia Governor Ralph Northam touted Virginia’s leading efforts in “creating the nation’s enforceable workplace safety requirements.”
In many ways, Virginia’s new standard tracks existing guidance from both OSHA and the Centers for Disease Control and Prevention (CDC). In other ways, the standard is more expansive. Recognizing this interplay, the Virginia standard expressly confirms that if an employer “actually” complies with CDC guidelines that provide equivalent or greater protection than the Virginia standard, those actions will be deemed compliant with the standard. If an employer follows a less stringent CDC guideline that falls short of the Virginia standard, then the employer’s actions will not necessarily be found compliant with Virginia’s rules, but may be considered as evidence of good faith in any potential enforcement action. Compliance on paper is not enough—to benefit from this provision, employers must show on-the-ground execution and enforcement of COVID-19 policies based on CDC guidelines.
In sum, Virginia employers should ensure that they familiarize themselves with and develop protocols to comply with the new Virginia standard, while continuing to monitor and adhere to related guidance from OSHA, the CDC, and other federal, state, and local officials.
The standard imposes different sets of requirements on employers depending on the exposure risk levels their employees may face, including “very high,” “high,” “medium,” and “lower.” The standard contemplates that these risk levels are task specific, such that the same employee could theoretically be classified as both “high” and “lower,” depending on the nature of the work performed throughout the workday.
Accordingly, employers will need to carefully evaluate the job duties of their workforce to develop proper classifications of their employees. Although the standard provides some clear indicators—for instance, an “office building setting” is considered to fall within the “lower” classification—for many employers this will be a context-specific assessment that may vary from one worksite to another and possibly from one task to another. The higher the risk, the stricter (and more burdensome) the standards.
In addition to risk-based requirements for different job tasks and hazards, the standard imposes baseline requirements for all Virginia employers. These fall into several categories.
Exposure Assessment and Notification Requirements
Return to Work, Social Distancing, and Sanitization Requirements
In addition to the general requirements summarized above, employers with hazards or job tasks that are classified as “very high,” “high,” or “medium” may be obligated to adhere to additional requirements under the standard:
If an employer determines that some of its workforce faces “very high,” “high,” or “medium” exposure risk to COVID-19, the employer must be prepared to train employees on the requirements of the Virginia standard or the CDC and/or OSHA guidelines the employer is following in lieu of any provision of the standard; the employer’s infectious disease preparedness and response plan; signs and symptoms of COVID-19; risk factors of COVID-19 to individuals with health conditions; transmission of the virus (including by pre-symptomatic and asymptomatic individuals); safety and health work procedures (including the use of PPE); and the antidiscrimination provisions in the standard.
According to the most recent guidance, employers will have 60 days after the Virginia standard becomes effective to train employees under this section of the standard. Employers must maintain certification records of employee trainings per this requirement.
Employers with hazards or job tasks classified at “lower” risk must provide written information to employees on the potential hazards and symptoms of COVID-19 and measures to minimize exposure.
With the passage of this standard, employers in Virginia should begin preparing a plan to comply with these new workplace safety standards. Employers should immediately do the following:
Even employers outside of Virginia may consider implementing some of the requirements set forth in the standard as well, albeit on a voluntary basis.
Many of the mandates in Virginia’s emergency standard mirror existing guidance from the federal OSHA and CDC. However, failing to follow the standard where it is more expansive than CDC guidelines may result in an enforcement action, and possible penalties for noncompliance. Further, although Virginia is the first state to pass enforceable workplace standards, other states may soon follow suit.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our COVID-19 Legal Issue Compendium.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Jason S. Mills