COVID-19, Regulatory Developments

Virginia Enacts Emergency Standard to Protect Workers from COVID-19 Exposure

Virginia has become the first state in the nation to enact mandatory workplace safety rules to prevent the spread of COVID-19. The emergency temporary standard (ETS) for infectious disease prevention took effect on July 27, 2020.

Virginia state flag on a facemask

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The new standard covers most private employers in Virginia as well as all state and local employees and will be enforced by Virginia Occupational Safety and Health (VOSH). Employers that fail to comply with the new rules face fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation.

Scope and Approach of New Rules

The new standard mandates that workers be provided with personal protective equipment (PPE) and sets parameters for businesses to sanitize their worksites, enforce social-distancing protocols, and in some cases implement infectious disease preparedness and response plans.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Governor Ralph Northam said. “In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”

The ETS takes a layered approach to employee protection depending on each job’s exposure risk level and includes:

  • Minimum requirements that apply to all employers;
  • Enhanced requirements for employees in “medium” exposure risk jobs, such as commercial transportation, daycare, restaurants and bars, grocery stores, factories, construction, retail, salons, dentist offices, and gyms; and
  • Enhanced mandates for employees in “very high” or “high” exposure risk jobs, such as in laboratory or medical settings involving known or suspected COVID-19 patients.

Office Environments

Most office work environments will fall under the category of “lower” exposure risk because employees can avoid contact within six feet of persons known or suspected of having COVID-19. In such an environment, employees should be able to achieve minimal contact by, for example, telecommuting, staggered work shifts, or floor-to-ceiling physical barriers such as clear plastic walls.

Face coverings are required when it’s necessary for an employee to have brief contact with others inside the six-feet distance, but the masks aren’t a substitute for the other means of achieving minimal occupational contact.

Mandatory Requirements for All Virginia Employers

All employers are now required to take precautions to prevent the spread of COVID-19. A few of the mandatory steps include:

  • Providing information to employees on the hazards and characteristics of the coronavirus and measures to minimize exposure and self-monitor for symptoms (the Virginia Department of Labor and Industry is developing an information sheet employers may use);
  • Requiring social distancing or, when not possible, the wearing of face masks;
  • Closing common areas and breakrooms or, if not possible, tightly controlling access to ensure physical distancing and disinfecting the area immediately or at regular intervals;
  • Cleaning and disinfecting commonly used areas and equipment and providing frequent access to hand washing or hand sanitizer.
  • Ensuring sick leave policies are flexible and employees are aware of them;
  • Establishing a system to report positive COVID-19 tests and notifying (while keeping identifies confidential) the following people within 24 hours: employees who may have been exposed; other employers whose employees may have been exposed; the building or facility owner (so it may sanitize common areas and notify tenants); and the Virginia Department of Health; and
  • Prohibiting employees from returning to work for at least 10 days after symptom onset and three days after symptoms pass, or after two consecutive negative tests at least 24 hours apart (but not antibody tests).

Higher Risk Jobs

Additional requirements apply to jobs classified as medium exposure risks and high or very high exposure risks, such as prescreening before entering a worksite, telework, staggered shifts, physical barriers, and air-handling system requirements when appropriate. The employers also must provide training on the hazards and characteristics of the COVID-19 disease to all employees and develop and implement a written infectious disease preparedness and response plan.

Effective Dates and Expiration

The ETS took effect on July 27, but there is a 30-day window to implement most of the employee training requirements and a 60-day window to establish written infectious disease preparedness and response plans and undertake related training.

The ETS will remain in place for six months, unless the governor’s COVID-19 state of emergency expires before then.

What Else You Should Know

Finally, the ETS gives legal protections to workers who raise reasonable concerns about infection control and prohibits employers from discharging or discriminating against a worker for exercising rights under the standard.

You also must allow employees to wear their own PPE if the equipment isn’t already provided by your organization and doesn’t create a greater hazard.

Jayna Genti is an attorney with DiMuroGinsberg P.C., in Alexandria, Virginia. You can reach her at jgenti@dimuro.com.