How Virginia’s new COVID-19 rules affect your workplace

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By Jonathan R. Mook

The nature of the COVID-19 outbreak continues to shift, with the so-called fourth wave straining healthcare systems in many communities. Recognizing the changes, Virginia’s Department of Labor and Industry (DOLI) has imposed new coronavirus workplace requirements affecting all employers within the Commonwealth. Building on its existing standard for infectious disease prevention, first put into action in January 2021, the Virginia Safety and Health Codes Board recently issued amendments, which Governor Ralph Northam approved and which became effective in September 2021.

New requirements

In some ways, the new COVID-19 requirements have simplified the safety measures you must follow by establishing one set of rules applicable to all workplaces, with expanded mandates only for healthcare facilities and those deemed to be “higher-risk” workplaces. And the amendments make clear that by following current guidance and recommendations from the U.S. Centers for Disease Control and Prevention (CDC), you will be considered as acting in compliance with the Virginia standard.

In addition to simplifying some previous safety requirements for Virginia employers, the amended standard does impose some important new rules you need to follow.

Masking. The amended standard takes into account the delta variant’s more contagious nature by requiring every employer located in CDC-designated areas of substantial or high community transmission to have all employees (whether vaccinated or not) wear face masks. The only exceptions allowed are when:

  • An employee is alone in a room or actively eating or drinking (with unvaccinated individuals keeping at least six feet away);
  • Seeing someone’s mouth is important (such as communicating with a hearing-impaired person);
  • Because of a disability, an employee can’t wear a mask; or
  • Wearing a mask would pose a work hazard.

At the present time, every Virginia county or city is designated as being located in an area of substantial or high community transmission. Accordingly, the masking requirements presently apply statewide.

Vaccination surveys. Although the amended standard doesn’t impose any mandatory vaccination or testing requirements, you still should survey the COVID-19 vaccination status of your employees and take additional precautions to protect individuals who aren’t fully vaccinated. In responding to the survey, your employees need not present proof of vaccination. A written affirmation about vaccine status should be sufficient.

Protecting unvaccinated workers. For employees who report they aren’t fully vaccinated, you must take steps to ensure they are able to maintain physical distancing. Thus, you should post signs or display other visual cues to remind them of the need to physical distance. You also should decrease workplace density by limiting the number of employees in areas of the worksite.

Handling COVID-19 cases. All Virginia employers must institute policies and procedures to ensure employees with confirmed or suspected COVID-19 infections don’t enter the workplace and remain out according to the CDC guidelines. If there’s a confirmed COVID-19 case, you must notify other potentially exposed individuals, while keeping the employee’s identity confidential.

Confidentiality. An employee’s vaccination status as well as a positive COVID-19 diagnosis must be treated as a confidential medical record and shouldn’t be shared with anyone who doesn’t need to know.

Policies and procedures. All Virginia employers need to put in place new policies and procedures that conform to the amended standard. The policy must include a method to receive and resolve anonymous complaints of policy violations. It also must specifically require employees to report if they are experiencing symptoms consistent with COVID-19 or have been diagnosed with COVID-19 so you may take the appropriate steps to ensure the safety of all your employees.

Reporting. If you have two or more positive cases in the same workplace within a 14-day period, you must report it to the Virginia Department of Health and the DOLI.

“Higher risk” workplaces. If you have (1) nonvaccinated employees, (2) locations in areas of substantial or high community transmission, or (3) otherwise at risk employees (such as those with compromised immune systems), you will be deemed to have a “higher risk” workplace. The amended standard requires employers with 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan and to train employees on the plan by November 7, 2021. (Fully vaccinated employees may be provided written information in lieu of training on the amended standard as well as site-specific procedures that will be followed in conformity with the standard’s requirements.)

Bottom line

The amended standard imposes significant new requirements on all Virginia employees to curb the spread of COVID-19. Therefore, you should take steps now to implement the new rules and, where appropriate, update your current policies and procedure.

To ensure you are in compliance, it’s always advisable to consult with experienced employment counsel who can assist you in implementing the new requirements and, additionally, help you to respond to COVID-19 issues as they arise. The last thing you want to deal with in these difficult times is a DOLI enforcement action for failure to maintain a safe workplace.

Jonathan R. Mook is a partner with DiMuroGinsberg, P.C., in Alexandria, Virginia. For more information about Virginia’s amended standard and best practices in developing policies and effective procedures to ensure compliance with the state’s COVID-19 workplace safety requirements, please contact jmook@dimuro.com.