Virginia Is First State to Pass Permanent Standard to Address COVID-19 in the Workplace

Virginia employers should take note of how the new COVID-19 permanent standard differs from last summer’s temporary standard and ensure that training and policies are updated accordingly.

In July 2020, the Commonwealth of Virginia became the first state in the nation to enact enforceable workplace safety standards on an emergency basis to address the risks of COVID-19. On January 13, 2021, the Virginia Health and Safety Codes Board (Board) voted to finalize a permanent regulation (the Standard) that will be enforced by the Virginia Occupational Safety and Health (VOSH) Program of the Virginia Department of Labor and Industry (DOLI).

The Standard became effective on January 27, 2021, and applies to most private employers in Virginia. It will remain in effect permanently unless, upon the expiration of the governor’s state of emergency, the Board determines that the Standard is no longer necessary.

Although the Standard largely mirrors the prior emergency temporary standard, Virginia employers should take note of the differences and new requirements and ensure that training and policies are updated in accordance with the Standard.

Significant Temporary Standard Provisions That Will Remain in Effect

The Standard maintains most of the provisions of the emergency temporary standard, which were outlined in a prior LawFlash. Like the temporary standard, employers are subject to different requirements depending on the exposure risk levels their employees may face, including “very high,” “high,” “medium,” and “lower.”

Employers are required to assess the hazards of each job task based on exposure risk level to COVID-19, which also informs them of the actions that need to be taken pursuant to the Standard. Regardless of the exposure level, all employers have obligations under the Standard. Significantly, all employers must inform their employees that they should self-monitor for symptoms; develop and implement policies and procedures for the reporting of symptoms and/or positive COVID-19 test results; and ensure that employees who are exposed, have symptoms, or have a positive COVID-19 test do not return to work until they have met the requirements to do so under the Standard.

All employers are also required to ensure that the workplace conforms to the safety standards described in the Standard, including physical distancing (and occupancy in common areas), complying with personal protective equipment (PPE) requirements, and ensuring that cleaning procedures in the Standard are followed for sanitization of the workplace.

In addition to the general requirements summarized above, employers with hazards or job tasks that are classified as “very high,” “high,” or “medium” are obligated to adhere to additional requirements under the Standard. Most importantly, employers that have classified any job task with these categorizations are required to implement a written infectious disease plan. Employers should maintain records of such plan and document any revisions or addendums based on updated guidance from the Centers for Disease Control and Prevention (CDC) and DOLI that may be issued in the future.

New Requirements/Guidance in the Standard

The Standard contains some significant changes from the emergency temporary standard, including the following:

• No enforcement action shall be brought against an employer for failing to provide PPE if such PPE is not readily available on commercially reasonable terms, and the employer makes a good-faith effort to provide such PPE as is readily available on commercially reasonable terms.
• Compliance with any specific CDC guideline may be considered full compliance with the Standard. DOLI has on occasion also issued FAQs noting that newly added CDC guidance that differs from the Standard (for example, on quarantine requirements) can be followed, and employers should monitor those FAQs for similar guidance.
• All employers must establish a system of employee reporting that allows them to receive reports of any employee in the workplace “2 days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test).”
• When it is necessary for employees solely exposed to lower risk hazards or job tasks to have brief contact with others closer than six feet apart (e.g., passing another person in a hallway that does not allow physical distancing of six feet), a face covering is required.

Changes to Reporting Requirements

The requirement to report positive cases has also changed.

• Reporting to the Virginia Department of Health has been changed to reflect that any two positive cases of individuals who were present at the workplace within the last 14 days must be reported. Employers shall continue to report all cases until the local health department has closed the outbreak. After the outbreak is closed, subsequent identification of two or more confirmed cases of COVID-19 during a declared emergency shall be reported.
• As required under the temporary standard, employers still must report three or more positive cases discovered within 14 days to DOLI. Currently, all reporting (to the Virginia Department of Health and DOLI) can be done through an online form.

Changes to Return-to-Work Requirements

The requirements for employees returning to work have also changed.

• Symptomatic employees cannot return to work until they have been fever free for 24 hours without fever-reducing medications, their respiratory symptoms have improved, and at least 10 days have passed since their symptoms first appeared.
• Additionally, the following language has also been added to the Standard: “However, a limited number of employees with severe illness may produce replication competent virus beyond 10 days that may warrant extending duration of isolation for up to 20 days after symptom onset. Employees who are severely immunocompromised may require testing to determine when they can return to work – consider consultation with infection control experts.” Employers should ensure that any inquiry to an employee regarding this provision is mindful of the Americans with Disabilities Act.
• Asymptomatic employees may not return to work until 10 days have passed since their first positive polymerase chain reaction test.

Training Requirements for Employers

The training requirements instituted by the emergency temporary standard remain in effect.

• 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 its employees on the required elements in the Standard, as well as the employer’s written plan. Employers must maintain certification records of employee trainings per this requirement, though original signatures are not required.
• Employers with hazards or job tasks classified at “lower” risk are still required to provide written information to their employees on the potential hazards and symptoms of COVID-19 and measures to minimize exposure.

What Should Virginia Employers Do Now?

With the passage of the permanent Standard, employers in Virginia should evaluate their hazard assessments (especially for any changes as more employees return to physical worksites) and review existing policies and revise and update those policies as necessary (e.g., mask policies, reporting requirements, and changes to return-to-work protocols). If employers update their protocols based on the final Standard, any changes should be communicated to their employees. Additionally, as more employees rejoin the workforce, employers should continue to ensure that all employees have been trained in accordance with these provisions.

Employers outside of Virginia may consider implementing some of the requirements set forth in the Standard as well. As in the temporary standard, many of these mandates follow existing guidance from the federal Occupational Safety and Health Administration (OSHA) and the CDC. In addition to other states that may follow Virginia’s lead and adopt workplace standards on a permanent basis, the Biden administration issued an executive order on January 21 that directs OSHA to issue a federal emergency temporary COVID-19 standard if deemed necessary. It is likely that any federal COVID-19 standard will be modeled, in part, after Virginia’s Standard and/or those of the handful of other states that have passed similar legislation.

Return-to-Work Resources

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.

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Contacts

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:

Los Angeles
Jason S. Mills

Washington, DC
Sharon P. Masling
Jonathan L. Snare