October 20, 2021

Volume XI, Number 293

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Virginia Becomes First State To Pass Permanent Workplace Coronavirus Rules

As we previously reported, Virginia became the first state to issue mandatory COVID-19 workplace safety rules via an emergency temporary standard (“ETS”) executed on July 15, 2020. The temporary standard expired on January 26, 2021 but the Virginia Department of Labor and Industry’s Safety and Health Codes Board (the “Board”) has recently taken steps to ensure the protection for workers will continue beyond its expiration. On January 13, 2021 in a 9-4 vote, the Board passed permanent workplace virus safety regulations that mirror but also enhance those in the ETS. The permanent regulations became effective on January 27, 2021, with announcements being made on the DOLI website, found here, and in the Richmond Times Dispatch, found here.

Key Takeaways

The ETS imposed COVID-19 workplace safety requirements on employers, such as mandating the use of personal protective equipment (“PPE”), disinfection and sanitation, and employee training, among others. While the permanent standard mirrors the ETS in many ways, it also contains additions and revisions. These include: amended requirements for ‘face coverings’, clarification for employers on the meaning of ‘minimal occupation contact’ for differentiating between “medium” and “low” risk workplaces, implementation of a symptoms based strategy for returning to work, and updated worksite airflow and ventilation requirements.

Employers in the Commonwealth should consult the final regulations, available here, to ensure they are in compliance.

More Detail

The ETS found here, applied to most private employers and some state and local employers as well, and were “designed to establish requirements for employers to control, prevent, and mitigate the spread of [the COVID-19] virus to and among employees and employers.” See Virginia Department of Labor and Industry News Release (July 27, 2020) available here. The ETS attempted to minimize the transmission of the virus between employees by setting workplace standards and reporting obligations. The standards provided guidance for determining risk exposure and categorized jobs by risk level. We previously reported on those workplace standards and obligations here. As noted in the permanent regulations Draft Agenda, found here, the purpose of the permanent regulations is to “mirror, to the extent possible” the ETS, to ensure the protections for workers provided under the former ETS continues for as long as necessary.

Per the Board’s draft meeting agenda, the decision to adopt permanent rules came after a 60 day written comment period spanning from August to September, 2020, and a public hearing on September 30, 2020. The Board stated that they received, “993 written comments through the Virginia Regulatory Townhall for the 60 day written comments period … [and] 33 written comments sent directly to the Department … [plus] 29 oral comments received during the public hearing.” See Commonwealth of Virginia Department of Labor and Industry Draft Agenda: Safety and Health Codes Board Meeting (Jan. 12, 2021) available here. Based on the public comments, the Board developed the permanent standard, which subsequently went into effect on January 27, 2021.

Employers Affected

Like the ETS, the permanent standard, found here, applies to employers in the Commonwealth of Virginia that fall under the jurisdiction of the Virginia Occupation Safety and Health jurisdiction, which includes most private employers and some state and local employers as well.

The Permanent Standard Revisions and Additions

  1. Face Coverings: By amending the definition of ‘face covering,’ the permanent standard requires face coverings to be made of two or more layers of fabric, and not include valves or vents. In addition, new language requires employees to wear face coverings in work vehicles with other employees and when engaging in “low risk” job tasks that cannot accommodate six feet of space between employees.

  2. Clarification of What Constitutes “Medium” vs. “Low” Risk: Under the ETS, “medium” exposure risk hazards or job tasks, which correspond with more workplace safety rules than those considered “low” risk, were defined as those that “require more than minimal occupational contact inside six feet” with employees or other individuals in the workplace. The new regulations provide more clarity on what “minimal occupational contact” means, defining it as “no or very limited, brief, and infrequent contact with employees or other persons at the place of employment.”

  3. Notification Requirement: Employers are now required to notify the Department if two or more employees have tested positive for COVID-19 within 14-days of being present at the worksite.

  4. Symptom Based Return to Work: The permanent standard includes a symptoms based strategy for return to work. Importantly, the new standard now requires employees who are suspected to be infected with COVID-19 (regardless of whether they have actually tested positive for COVID-19), be excluded from the workplace until three conditions have been met: (1) the employee is fever-free for at least 24 hours, (2) all respiratory symptoms have improved, and (3) at least 10 days have passed since the symptoms appeared. Furthermore, asymptomatic employees who test positive for COVID-19 are excluded from returning to work for 10 days following the date of their positive test.

  5. Face Shields: The permanent standard clarifies that while face shields are not a substitute for masks, they may be used by people with medical conditions preventing the use of an otherwise suitable face covering.

  6. Updated Airflow and Ventilation Requirements: In addition to the requirements under the ETS, the new regulations require that worksites or jobs categorized as very high, high, or medium exposure must, where possible, be designed to increase total air supply and utilize natural ventilation. It also requires the inspection of filters to ensure clean ventilation. The regulations do not mention any specific training requirement, but employers should pay special attention to any subsequent guidelines that are released.

  7. Infectious Disease Preparedness and Response Plan: The new regulations add language requiring the plan “consider and address the level of [COVID-19] disease risk associated with various places of employment …. [including] situations where employees work during higher risk activities involving potentially large numbers of people or enclosed work spaces at large social gatherings.” In assessing risk, employers should refer to the amended definition of ‘minimal occupational contact’ to determine whether the job/worksite exceeds the definition.

  8. Trainings: The new regulations require employers with jobs or worksites classified as ‘very high’ or ‘high’ provide training to all employees, regardless of the employees’ individual risk classification. Such employers must provide training on (1) the employer’s infectious disease preparedness and response plan; (2) information pertaining to the characteristics, symptoms, and methods of spread of COVID-19, and (3) safe work practices.

Important Dates

  • Training requirements take effect March 26, 2021.
  • The requirement that employers develop an infectious disease prevention and response plan likewise takes effect on March 26, 2021

Notably, in lieu of complying with the permanent standards, employers are allowed to comply with mandatory and non-mandatory CDC guidelines, provided such guidelines provide equivalent protection to the permanent standard.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 28
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About this Author

Makenzie D. Way Labor & Employment Litigation Law Clerk Proskauer Rose Boston, MA
Law Clerk

Makenzie Way is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group. Makenzie also has experience working as a mediator with the Penn Law Mediation Clinic.

Makenzie earned her J.D. from the University of Pennsylvania Law School, where she was a deans scholar and editor of the University of Pennsylvania Journal of Law and Social Change (online). During law school, Makenzie earned a Certificate in Alternative Dispute Resolution after completing the Alternative Dispute Resolution Transnational Program at Waseda Law School in...

617-526-9841
Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

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,...

202-416-6830
Associate

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.

...
617-526-9603
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