Please note: As of January 27, 2021, Virginia has enacted the Permanent Workplace Standard for COVID-19.
In addition to extending many employer obligations under the Temporary Standard, the Permanent Standard creates new requirements and dispenses with some others. Our colleagues at SESCO Management Consultants have provided an overview of key provisions that remain and new requirements under the Permanent Standard.
Key Differences Between the Permanent Standard and the Temporary Standard
- An employer now must only report cases to the Virginia Department of Health if the employer discovers two positive COVID-19 tests in a 14-day period, as opposed to being required to report every positive test. The report must be made within 24 hours and include the name, date of birth, and contact information related to each case.
- The Permanent Standard clarifies that an employer must notify the Virginia Department of Labor and Industry within 24 hours of the discovery of three or moreof the employer’s own employeespresent at the workplace within a 14-day period who test positive for COVID-19 during that time.
- A time-based return-to-work framework has replaced the Temporary Standard’s test-based requirement. Now, previously symptomatic employees are excluded from physically returning to work until (i) the employee is fever-free for at least 24 hours, (ii) respiratory symptoms have improved, and (iii) at least 10 days have passed since symptoms first appeared.
- Face coverings must not have exhalation valves or vents, as they allow virus particles to escape. Face coverings must not be made of a material that makes it difficult to breathe, such as vinyl. Additionally, employees may not use a face shield as a substitute for a face covering.
- There is no longer a provision that would have required that the Permanent Standard not conflict with requirements and guidelines applicable to businesses set out in any applicable Virginia executive order or order of public health emergency. Thus, the Permanent Standard cannot be used to enforce Governor Northam’s executive orders.
- Areas where multiple shifts are employed must be cleaned and disinfected no less than once every 12 hours.
- While employers must pay for any COVID-19 testing performed for return-to-work purposes, the Permanent Standard clarifies that the employers’ health insurance may cover such costs.
Despite the increased attention on COVID-19 vaccines, the Permanent Standard does not provide any guidance or requirements with respect to vaccination of employees.
What Virginia Employers Should Do Now
Although the Permanent Standard is similar to the Temporary Standard, Virginia employers should review the key differences outlined above in connection with existing policies and procedures to ensure they are in compliance with all of the new requirements. Failure to comply could be costly: employers may be subject to fines up to $12,726 for serious violations, and up to $127,254 for willful violations.
Therefore, Virginia employers should:
- Review their infectious disease preparedness and response plans to ensure compliance with the new regulations in the Permanent Standard;
- Update any test-based return-to-work requirements;
- Prohibit the use of face shields, unless they are used in addition to other face coverings;
- Ensure that common areas and those where workers on multiple shifts operate are disinfected every 12 hours; and
- Train or notify supervisors and employees on new workplace safety policies, as needed.
- Additionally, employers should know that President Biden has issued an Executive Order directing the Occupational Safety and Health Administration (“OSHA”) to issue revised guidance to employers, within the next two weeks, on workplace safety. The Executive Order also directed OSHA to evaluate whether federal temporary emergency standards are necessary and, if so, to issue them by March 15, 2021. We will continue to monitor these federal developments, which may use the Virginia Permanent Standard as a roadmap or even impose further requirements.
Background on the Temporary Standard: On July 15, 2020, Virginia adopted the nation’s first state-level COVID-19 workplace safety requirements (available here) —formally §16VAC25-220, Emergency Temporary Standard (ETS).
The rules, according to the Governor's Office, “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.
Key provisions in the Temporary Standard that remain part of the Permanent Standard include requirements to:
- Conduct workplace assessments of the hazards that potentially expose employees to COVID-19, and categorize positions as “very high,” “high,” “medium,” or “low risk” for contraction of COVID-19;
- Create a workplace infectious disease preparedness and protection program if an employer has job tasks with risks classified as “very high” or “high,” and/or if the employer has 11 or more employees with job tasks classified as “medium” risk;
- Provide COVID-19 training to employees; and
- Provide access to hand-washing and cleaning supplies, and undertake regular cleaning processes