On July 15, Virginia adopted the nation’s first state-level COVID-19 workplace safety requirements (available here) —formally §16VAC25-220, Emergency Temporary Standard (ETS).
According to a news release from the Office of the Governor, these rules “will protect Virginia workers by mandating appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth. The actions come in the absence of federal guidelines.”
Many of the new rules are consistent with the Governor’s executive orders and/or guidance from the Centers for Disease Control and Prevention (CDC). That means many ETS requirements will be familiar to VADA members, who have adhered to such practices for months. The ETS adds to and operates separate from those orders. Also, unlike CDC guidance, the ETS is binding regulatory law that, if violated, might result in significant civil penalty.
DOLI has a thorough COVID-19 Emergency Temporary Standard resource center.
VADA has created a checklist and offers two webinars to help their members understand the new ETS.
This document is intended to serve as a master checklist and general guidance for VADA members. It addresses ETS effective and expiration dates, mandatory requirements for all employers, rules for hazards or job tasks classified at medium exposure risk, infectious disease preparedness and response plan requirements, training, and discrimination against an employee for exercising rights under the ETS.
In addition to the checklist items, VADA offers notes and analysis, placing certain requirements into context for our industry. By no means is this a perfect document, but VADA staff has trimmed 47 pages of regulations into a six-page checklist, as we seek to help you understand what these unprecedented regulations require. We will modify the document as needed.
Already, VADA members have taken many of the steps the ETS requires as part of preexisting obligations to remain open during the pandemic. However, the ETS stipulates dealers (most likely considered “medium” hazard employers under the ETS) must take additional steps to promote workplace safety against the coronavirus and COVID-19 disease.
Violation of the ETS may result in civil penalties between $13,494 and $134,937 per violation. Therefore, it is essential you thoroughly review this document and the materials DOLI has made available—including the full, 47-page ETS—then take steps necessary to ensure compliance.
VADA thanks Todd Leeson, Esq. of Gentry Locke, and Kevin Oddo, Esq. of the Berglund Auto Group, for their consultation as we created this material. Todd is available at (540) 983-9437 or email@example.com. See the checklist.
Gentry Locke employment and labor lawyer Todd Leeson, Esq.; VADA General Counsel Mike Charapp, Esq.; and VADA Legal & Legislative Affairs Manager Tommy Lukish, Esq. conduct an employer-focused webinar that will help dealers understand the management decisions they need to take now that the ETS rules are in effect. Employers will face many decisions in satisfying their obligations under the ETS. This webinar is intended only for VADA members and is designed to provide dealers a roadmap, and the tools and resources, they will need to comply.
Note: DOLI recently posted a Medium Exposure Risk Level Training presentation, which VADA reviewed, recorded, and made available to VADA members Aug. 18 as a replacement for the ETS Training Presentation VADA reviewed, recorded, and disseminated Aug. 11.
Link: Presentation (22 minutes)
- Anne Gambardella, Esq., VADA Director of Legal & Legislative Affairs
- Tommy Lukish, Esq., VADA Legal & Legislative Affairs Manager
Description: Pursuant to 16VAC25-220-80 of the ETS, employers must train their employees on the regulations no later than August 26, 2020. This webinar is designed to allow those watching to satisfy their training requirements. Keep in mind: Employers and employees must verify they’ve completed the necessary training by meeting ETS certification requirements. Whomever facilitates the training at your organization, should it be through this video, should identify that VADA reviewed the DOLI Medium Exposure Risk Level Training PowerPoint presentation. Also, it might be wise to list the name of the manager or supervisor who observed employees complete their training requirement. This webinar is intended only for VADA members.
Note, this training will not address employer requirements under 16VAC25-220-70 or 16VAC25-220-80.B.10, which concern training of an employer’s infectious disease preparedness and response plan, which must be completed by September 25, 2020.
VADA staff created the following questions and answers to help its members understand what is required of them under the new ETS (available as a PDF or in drop-down form below).
In addition to reviewing the following, it is important you thoroughly review the full ETS with counsel to ensure compliance. As mentioned herein, DOLI has indicated the Virginia Occupational Safety and Health (VOSH) Program is creating materials to help employers in that regard.
Disclaimer: The following analysis does not provide, and is not intended to constitute, legal advice. All content is for general information purposes only. VADA members should consult legal counsel when making decisions relating to the §16VAC25-220, Emergency Temporary Standard.
Yes, the ETS will apply to Virginia’s franchised auto dealerships.
The ETS “shall apply to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the VOSH program as described in §§16VAC25-60-20 and 16VAC25-60-30.” See §16VAC25-220-10.C (p. 2).
The ETS supplements and enhances existing VOSH rules relating to SARS-CoV-2 and COVID-19.
The ETS is effective as of July 27, 2020.
The ETS stipulates, it “shall expire (i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first or (ii) when repealed by the Virginia Safety and Health Codes Board.”
Phase Three is still in effect.
16VAC25-220-10.F (p. 4) makes clear the ETS works separately from and shall not conflict with the Governor’s executive orders and corresponding guidelines. Said differently, the Phase Three requirements laid out in Executive Order 67 and the corresponding Guidelines for All Business Sectors for Phase Three still apply, as does the general face covering mandate under Executive Order 63.
The ETS requires several health practices already familiar to VADA members through the Governor’s orders. But, they add several rules for Virginia employers, like requiring employers to notify employees within 24 hours of learning someone within the organization tested positive for COVID-19, and stipulating when employees can return to work, among other regulations.
Simply put, that’s fine, but make sure it’s at least what’s required under the ETS.
When the Safety and Health Codes Board was deliberating the workplace safety rules, a major point of discussion was whether compliance with recommendations from the CDC would deem one in compliance with Virginia’s new ETS. The simple answer is “yes,” if the given CDC recommendation provides equivalent or greater protection than what is stipulated in the ETS. See §16VAC25-220-10.G.1 (p. 4).
The ETS provides, “To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARSCoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer's actions shall be considered in compliance with this standard.”
Actual compliance with CDC guidelines as contemplated in the ETS shall be considered evidence of good faith in any enforcement proceeding relating to the ETS.
A principal responsibility for employers under the ETS is to conduct a hazard assessment and, through that, determine what level of exposure their employees face.
Specifically, the ETS states all employers “shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Employers shall classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of this standard for ‘very high,’ ‘high,’ ‘medium,’ or ‘lower’ risk levels of exposure. Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.” §16VAC25-220-40.B.1. (p. 18).
It seems unlikely dealership employees would be “very high” or “high.” When making a determination between “medium” and “lower,” DOLI’s FAQs #14 suggests the operative question is whether an employee’s job task requires work inside six feet of another. If it does not, the FAQs suggest that employee can be “lower.”
Further, if the given employee’s work does not require work inside six feet of another and the employee is wearing a face covering for any brief moments of contact inside six feet (like passing someone in a hallway), they may still be considered at the “lower” risk level.
VADA has created a checklist, linked at the top of this page, to help our members understand their requirements under the ETS. It might be useful to consider the checklist together with the DOLI Nine Steps to Achieve COVID-19 ETS Compliance.
As noted in the checklist, the ETS makes certain requirements of all employers. VADA members should carefully review such requirements found in §16VAC25-220-40 (pp. 18-29). They address:
- Exposure assessment and determination, notification requirements, and employee access to exposure and medical records.
- When employees can return to work after a positive or suspected case of COVID-19
- Physical distancing
- Closure or control of access to common areas, breakrooms, or lunchrooms
- Employees occupying vehicles on the job
- Compliance with Virginia executive orders and/or public health emergencies
- Respiratory protection and personal protective equipment (PPE) when physical distancing is not possible
- Health or religious exceptions to face coverings, respirators, and PPE
- Sanitation and disinfecting
- Employer provision of PPE
While keeping confidential the identity of any infected employee, the employer shall notify within 24 hours:
- Other Employees who may have been exposed, informing them of possible exposure
- The Virginia Department of Health: Click here for a VDH location near you.
Employer must notify Other Employers whose employees were at the work site during the same time period and Building/Facility Owners, who then have requirements of notifying other tenants.
Employers must also notify the Virginia Department of Labor and Industry within 24 hours of discovering three or more employees present at the place of employment within a 14-day period tested positive for SARS-CoV-2 during a single 14-day window.
Nothing in the ETS requires employers to conduct contact tracing.
§16VAC25-220-40.C (pp. 22-24) lays out the ETS requirements on return to work. View that section for employer requirements on developing and implementing policies and procedures for known or suspected infections of SARS-CoV-2.
Symptomatic employees with known or suspected cases of COVID-19 may return to work when:
- Symptom-Based Strategy: Three days (72 hours) have passed since recovery, meaning fever resolution without the use of fever-reducing medications, AND improvement in respiratory symptoms (g. cough, shortness of breath), AND at least 10 days have passed since symptoms first appeared; OR
- Test-Based Strategy: There’s been resolution of fever without the use of fever-reducing medications, AND improvement in respiratory symptoms, AND two consecutive negative tests taken at least 24 hours apart.
Asymptomatic employees with known or suspected cases of COVID-19 may return to work when:
- Time-Based Strategy: At least 10 days have passed since the date of their first positive COVID-19 diagnostic test, assuming they have not subsequently developed symptoms, which would necessitate the symptom-based strategy or test-based strategy (above); OR
- Test-Based Strategy: Upon two consecutive negative tests taken at least 24 hours apart.
If, upon your hazard assessment, you determine some employees are at the “medium” risk level, the ETS mandates additional requirements beyond what is required of all employers, mentioned above.
VADA’s ETS checklist describes those requirements. You can find the exact language in §16VAC25-220-60 (pp. 35-39) of the ETS. To summarize, the requirements on “medium” risk employers involve:
- Engineering Controls, e.g., ensuring air-handling systems where installed are appropriate to address the virus and COVID-19 related hazards and job tasks that occur at the workplace.
- Administrative and Work Practice Controls, addressing surveying employees for signs or symptoms of COVID-19, face coverings, teleworking, staggered shifts, physical distancing, physical barriers, telephone and video conferencing, and service and product delivery.
- PPE, including employer responsibilities with SARS-CoV-2 virus and COVID-19 disease hazard assessment and PPE selection and more.
Employers at the “medium” risk level with 11 employee or more OR at the “very high” or “high” risk level with any number of employees shall develop and implement a written Infectious Disease Preparedness and Response Plan (or “Plan”), and train relevant employees on that Plan, by September 25, 2020.
The Plan and its training requirements only apply to those employees classified as “very high,” “high,” or “medium.” You need not train your “lower” level employees on the Plan.
Designate a person to be responsible for implementing your Plan.
The Plan shall include several required elements pursuant to this section. The best way to comply with the Infectious Disease Preparedness and Response Plan requirements of this section is to rely on the plan template the Virginia Department of Labor and Industry provided.
See §16VAC25-220-70 (pp. 39-43) for more.
Pursuant to §16VAC25-220-80 of the ETS, employers of any risk level must train their employees on the regulations no later than August 26, 2020.
Under the ETS, training requirements are more extensive for “very high,” “high,” and “medium” level employers than they are for “lower” level employers. If, upon your hazard assessment, you find any employees at the “medium” risk level, you must provide the more thorough training to all your employees, regardless of risk level.
If you find your business has only “lower” level employees, then you may satisfy the training requirements orally or in writing, and DOLI has provided a Lower Risk Training document for that purpose.
Employers and employees must verify they’ve completed training by meeting ETS certification requirements. The DOLI Training Certification Form might help. Whoever facilitates the training at your organization, should it be through the VADA video, should identify that VADA reviewed the DOLI Medium Exposure Risk Level Training Presentation. Also, it might be wise to list the name of the manager or supervisor who observed employees complete their training requirement.
Yes. The ETS, as stipulated in §16VAC25-220-90 (pp. 46-47), protects employees against discrimination for exercising their rights under the standard. Employers cannot:
- Discharge or in any way discriminate against an employee because an employee exercised their rights under the ETS;
- Discharge or in any way discriminate against an employee who opts to provide and wear their own PPE or face covering if the employer doesn’t provide it, provided it doesn’t cause greater hazard to the employee or create a serious hazard for other employees; or
- Discharge or in any way discriminate against an employee “who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease 7.17.2020 Page | 35 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.”
- (Example: Employee goes on Facebook, decrying the dealership’s COVID-19 infection control. The ETS protects the employee from discharge or discrimination.)
Employees are also protected in their refusal to do work or enter a location they feel is unsafe. Separate from the ETS, §16VAC25-60-110 provides requirements on discharging or disciplining employees who refused to complete their work because of a reasonable fear of injury or death.
The ETS is a VOSH standard, so a violation could be treated like any other violation of VOSH rules that would normally come with a serious or willful violation—and that can be significant.
This table reflects the maximum penalty amounts that VOSH may assess as of January 15, 2020.
|Type of Violation||2020 Penalty Amount|
|$13,494 per violation
(up from $13,260 in 2019)
|Failure to Abate||$13,494 per day beyond the abatement date
(up from $13,260 in 2019)
|Willful or Repeated||$134,937 per violation
(up from $132,598 in 2019)
Again, the ETS works separately from Governor Northam’s executive orders. An action that may violate the ETS and result in civil penalty from VOSH may also constitute a violation of an executive order, which could result in a Class 1 misdemeanor and up to one year in jail plus closure of the dealership(s). In sum, compliance with both the ETS and the Governor’s executive orders is paramount.