December 6, 2022

Volume XII, Number 340


December 05, 2022

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Virginia Becomes First State to Adopt Mandatory COVID-19 Workplace Safety Requirements

Quick Hit

Virginia became the first state to issue mandatory COVID-19 workplace safety rules when the Virginia Safety and Health Codes Board (“VSHCB”) approved an emergency temporary standard on July 15, 2020 by a 9-2 vote.  The final text has not yet been published but the mandatory requirements are expected to include obligations surrounding flexible sick leave policies, the promotion of social distancing, policies to identify workers who may have been exposed to COVID-19 in the workplace, and policies to determine when workers known or suspected to have had COVID-19 are able to return to the workplace.

Key Takeaways

The majority of employers in Virginia will soon be required to follow an emergency temporary standard establishing workplace safety rules to limit the risks of COVID-19 exposure to workers.  Based on our review of draft regulations, the new standard is likely to come into effect in late July and will apply to most private employers in the Commonwealth of Virginia, as well as to state and local employees.  It appears that employers who violate the new rules may be subject to significant fines.

When announcing these new mandatory rules, Virginia Governor Ralph Northam said they were being enacted due to the absence of federal guidelines.  The Department of Labor and federal Occupational Safety and Health Administration have repeatedly said they do not intend to propose a nationwide rule regulating COVID-19 measures and protections in the workplace.  We’ve previously posted on OSHA’s comments on that position here.  Instead, OSHA has issued temporary enforcement guidance and indicated it will rely on the OSH Act’s general duty clause which requires employers to provide a workplace free from recognized hazards.  We’ve reported on this non-mandatory guidance from OSHA in several previous posts.

The Virginia emergency temporary standard will be the first to go beyond OSHA’s non-mandatory guidance and establish minimum virus protection requirements.  Oregon OSHA has similarly announced it is working to draft and adopt temporary COVID-19 rules with a target effective date of September 1.  No other states have passed similar standards, but some, such as Michigan, have issued executive orders aimed at the same workplace safety goals.

© 2022 Proskauer Rose LLP. National Law Review, Volume X, Number 199

About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...


Lexie Reynolds is an associate in the Labor & Employment Law Department, and a member of the Employment Law Counseling & Training, Employment Litigation & Arbitration, and the Discriminatory, Harassment, and Title VII Practice Groups. Lexie’s practice covers a wide range of matters with a focus on internal corporate and government investigations. She has represented private and public companies, boards of directors and their committees, and individuals across many different industries including entertainment, financial services, and technology.

Caroline L. Guensberg Associate Labor & Employment Employment Litigation & Arbitration

Caroline Guensberg earned her J.D. from George Washington University Law School, graduating with honors. While attending law school, Caroline was a notes editor of the Federal Circuit Bar Journal and had her note published in the journal. Caroline was also a member of the Alternative Dispute Resolution Board and served as a writing fellow and a dean’s fellow. In addition, Caroline worked as a legal intern for the United States Equal Employment Opportunity Commission and the Federal Mine Safety Commission.

Prior to joining Proskauer, Caroline was a judicial clerk for the Connecticut...