By: Jonathan R. Mook
Last summer, Virginia became the first state in the nation to adopt mandatory workplace safety rules to prevent the spread of COVID-19 by approving an Emergency Temporary Standard for Infectious Disease Prevention (“ETS”). Recently, the state adopted a Permanent Standard covering most private employers in the Commonwealth, as well as state agencies and local governments. The Permanent Standard mandates appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications protocols.
The Permanent Standard aligns closely with the ETS and is intended to slow the transmission of COVID-19 and protect Virginia workers as the pandemic drags on. The workplace safety requirements will remain in place throughout the pandemic.
Although the Permanent Standard basically adopts the ETS requirements, there are some notable exceptions of which employers should be aware:
- Return to work. No longer may employers require a negative COVID-19 test as a condition of a symptomatic employee returning to work, as previously allowed under the ETS. Instead, employees may physically return to work after (i) the employee is fever-free for at least 24 hours, (ii) respiratory symptoms have improved, and (iii) at least 10 days have passed since symptoms first appeared.
- Reporting obligation. Employers must report to the Virginia Department of Health when two or more employees test positive for COVID-19 within a 14-day period. This loosens the ETS requirement that you report each time an employee tests positive for COVID-19.
- Face coverings. Acceptable “face coverings” for employees who interact with others is more strictly defined under the Permanent Standard as “two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin.” Exhalation vales or vents are prohibited.
One omission from the Permanent Standard is any guidance or requirements with respect to vaccination of employees. Importantly, that employees have been vaccinated does not eliminate or modify your obligation to comply with the Permanent Standard.
The Virginia Department of Labor and Industry will enforce the Permanent Standard. Should a complaint raise serious concerns about your compliance, the Department may initiate a formal investigation and pursue enforcement action. The Department already has received over 15,000 complaints about workplace safety due to COVID-19, so it is important that employers follow the Permanent Standard to avoid being the subject of citations and fines, which may amount to over $12,000 for serious violations and over $125,000 for willful ones.
Bottom Line: All Virginia employers who are covered by the new Permanent Standard should familiarize themselves with the requirements and ensure that they are followed. Employers have only until March 26, 2021 to update their infectious disease preparedness and response plans and to complete any necessary training as mandated by the Permanent Standard.
If you would like to obtain a copy of the Permanent Standard, or if you have any questions as to your obligations under the Standard and what you must do to comply, please contact DiMuroGinsberg partner, Jonathan Mook, at firstname.lastname@example.org.
For further information about Virginia’s COVID-19 requirements for workplaces, please see the article, entitled “Virginia Enacts Standards to Protect Workers from COVID-19 Exposure” by DiMuroGinsberg attorney, Jayna Genti, which is found in the October, 2020 issue of the Mid-Atlantic Employment Law Letter.