Virginia’s Enforceable COVID-19 Workplace Safety Mandate

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Virginia’s Department of Labor and Industry exercised their right as an Occupational Safety and Health Administration (OSHA) state plan state to implement the temporary emergency standard for Infectious Disease Prevention. Applying to most private employers, and state/local employees, the standard became effective July 27, 2020. 

The emergency standard is in effect for six months, upon expiration of the Governor’s emergency order, or when a permanent standard becomes effective. A permanent standard is making its way through the legislative process.

Virginia’s First-in-the-Nation COVID-19 Workplace Safety Standard

Virginia is the first state to adopt an enforceable mandate regarding COVID-19 safety measures in the workplace. Oregon takes the same path with emergency rules in effect September 1st. Will other States use Virginia’s groundwork and follow suit?

The 16VAC25-220, Emergency Temporary Standard Infectious Disease Prevention: SAR-CoV-2 Virus That Causes COVID-19, provides detailed coronavirus-related safety mandates that all companies under Virginia’s Occupational Safety & Health (VOSH) must follow. Steps to compliance are based upon the employer’s careful assessment and determination of exposure risk and hazard levels for each job task employees perform. Assessment considerations of the work environment, ability to physically distance, potential for and types of exposure, and the presence of a person suspected or known to be infected, allows employers to tailor their COVID-19 protections based on the determined exposure level. An employer may have groups of employees that are in all four risk level classifications: “very high”, “high”, “medium” and “lower” risk.  

Risk Classifications & Requirements

Very High, High and Medium risk classifications have heightened requirements, and work practice, engineering, and administrative controls. A mandate for workplace assessment for COVID-19 hazards and employee PPE determination is verified in a written certification. The implementation of respiratory protection for employees brings with it all of the associated regulatory requirements. Employees in these groups are to be COVID-19 trained within 30 days. Employers are to have psychological and behavioral support available, “to the extent feasible”. All risk classifications require controls: employee screening, disinfection, sanitation, cleaning, social distancing, face covering within six feet, employee education and/or training.

Employer Key Elements

The standard includes dozens of requirements for all employers with any level of risk. In addition to CDC and Federal OSHA guidelines, key elements of the standard require employers to:

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  • Assess and determine employee risk;

  • Provide flexible sick leave policies, telework and staggered shifts when feasible;

  • Provide both hand washing stations and hand sanitizer when feasible;

  • Assess risk levels of employees and suppliers before entry;

  • Ensure employees observe physical distancing through administrative controls;

  • Not permit employees or others known or suspected to be infected with the virus to report to or remain in the workplace or client location until cleared for return to work;

  • Establish a system to receive reports to track, communicate, and notify others when employees test positive for the virus;

    • Building and facility owners are to report positive COVID-19 tests to employer tenants;

  • Develop and implement policies and procedures for asymptomatic employees, or employees known or suspected to have COVID-19, to return to work using a symptom-based strategy or test-based strategy (test-based is paid by the employer);

  • Notify the Virginia Department of Health of positive COVID-19 cases;

  • Notify VOSH of three or more positive tests within a two-week period;

  • Post or present agency-prepared COVID-19 information to all employees;

  • Maintain air handling systems in accordance with manufacturers’ instruction; ANSI (American National Standards Institute) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards;

  • For certain employers, prepare infectious disease preparedness and response plans.

Infectious Disease Preparedness and Response Plans

An employer with 11 or more employees in the medium classification and all employers in the very high, and high classifications, must implement an infectious disease preparedness and response plan. The plan is to be developed and implemented with employee involvement. The plan shall consider and address COVID-19 risk hazards in the workplace, employee’s risk factors, contingency plans for situations arising from COVID-19 outbreaks, implementation of basic prevention measures, and policies for prompt identification and isolation of individuals in the workplace known or suspected to be infected with COVID-19. If the employer is using CDC guidelines or Commonwealth of Virginia guidance documents in lieu of compliance with the standard, they must be identified in the plan. Employers have 60 days, to September 25, 2020, to develop and implement the required plan.

Retaliation

The standard includes an anti-discrimination provision that prohibits employers from taking adverse action against employees when they voluntarily wear PPE, or raise reasonable concerns about infection control related to COVID-19 to the employer or the public including print, online, social, or other media. 

Enforcement

Enforceable immediately, VOSH compliance safety and health officers will enforce the new emergency standard in a similar manner to usual compliance actions. Employers who fail to comply may be cited by VOSH for violations, from Other-Than-Serious to Willful, with maximum penalties ranging from $13,494 per violation to $134,937 per violation. If necessary to protect workers, VOSH indicates they will shut down an employer’s operations.

Employers that comply with CDC recommendations to reduce the risk of COVID-19 in the workplace, providing equivalent or greater protection in the Emergency Standard, will be considered to be acting in good faith in any enforcement proceeding. If an employer’s level of compliance lags significantly behind that of its industry, an employer’s claim of economic infeasibility will not be accepted.

For information regarding the emergency standards, visit the Virginia Department of Labor and Industry website at doli.virginia.gov.

Blog Author

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Diana Ludwig, STSC
Project Manager, Security, Safety & Health
KERAMIDA Inc.

Contact Diana at dludwig@keramida.com.