On July 15, 2020, the Commonwealth of Virginia's Safety and Health Codes Board, in response to an executive order from Governor Ralph Northam, adopted emergency COVID-19 workplace safety rules for employers in Virginia, resulting in Virginia becoming the first state in the nation to adopt comprehensive workplace safety rules in connection with the pandemic. The rules, which are expected to become effective the week of July 27, 2020, will apply to all employers, employees, and places of employment that are under the jurisdiction of the Virginia Occupational Safety and Health program and will require employers to implement certain policies and procedures designed to mitigate risks relating to COVID-19 in the workplace.
"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," Governor Northam said in a statement. "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." Some business groups, however, have expressed concerns that the new requirements could lead to confusion due to potential conflicts with current guidance, result in businesses being fined for failing to comply with certain restrictions by mistake, and impose additional cost burdens on businesses that are already struggling as a result of the pandemic's economic impact.
The temporary rules seek to provide employers with flexibility to establish mitigation strategies that will eliminate or substantially decrease employee exposure to COVID-19 in the workplace. Requirements mandatory for all employers include the enforcement of physical distancing and notifying employees within 24 hours if a coworker tests positive for the virus. The rules also impose additional requirements on employers that present increased levels of risks associated with certain workplace hazards and job tasks.
The rules will expire six months after they become effective unless the Safety and Health Codes Board adopts permanent rules or repeals the temporary rules, or Governor Northam's State of Emergency declaration expires prior to the end of such six-month period.
Virginia's Department of Labor and Industry will have authority to enforce the rules. Fines for violating the rules can range from $13,000 to $130,000 for repeat offenders.
Requirements for All Employers
Requirements applicable to all employers include the following:
- Classifying employees by risk level (very high, high, medium, and lower) based on workplace hazards and job tasks;
- Establishing and implementing policies and procedures for employees to self-monitor for COVID-19 signs and symptoms and to report symptoms;
- Implementing procedures that will prevent employees who are known to have or are suspected of having COVID-19 from infecting healthy employees;
- Notifying employees who may have been exposed to COVID-19 in the workplace, which notification should be given within 24 hours of discovery of the possible exposure while keeping confidential the identity of the infected employee;1
- Establishing and implementing a return to work policy for employees known to have or suspected of having COVID-19;
- Ensuring that employees observe physical distancing while on the job and during paid breaks on the employer's property;
- Ensuring compliance with mandatory requirements of any applicable Virginia executive order or order of public health emergency;
- Implementing policies and procedures for workplace sanitation and disinfecting, including providing employees with access to hand washing or hand sanitizing and regularly cleaning and disinfecting common areas; and
- Refraining from discharging or in any way discriminating against an employee for exercising any rights under the rules or raising reasonable concerns to the employer, its agent, or a government agency about infection control related to COVID-19.
Requirements for Employers with "Very High," "High," and "Medium" Exposure Risk
An employer will need to assess and classify its workplace for exposure risk, with the understanding that one workplace could have different levels of exposure risk (for example, in a healthcare setting, an employee intubating a known COVID-19 patient could be classified as "very high" risk, while an employee performing administrative work away from others could be considered "lower" risk). Employers with workplaces and job tasks deemed under the rules to have "very high," "high," or "medium" risk levels for COVID-19 are subject to more stringent requirements. Very high- and high-risk jobs generally include occupations in the healthcare or another field in which employees have direct contact with people known to have or suspected of having COVID-19. Medium-risk jobs are those not otherwise classified as very high or high exposure risk and that require "more than minimal occupational contact inside six feet with other employees, other persons, or the general public"; examples of jobs in the medium-risk category include poultry and meat processing, agricultural and hand labor, transportation, educational settings, restaurants, grocery stores, correctional facilities, gyms, and spas. Lower-risk job tasks are those not otherwise classified as very high, high, or medium that have minimal occupational contact with other employees, other persons, or the general public, such as in an office building setting.
Very high and high exposure risk jobs require employers to implement certain engineering controls, such as ensuring appropriate air-handling systems and installing physical barriers to the extent feasible, where such barriers will help mitigate the spread of virus transmission. Additionally, these employers must implement certain administrative and work practice controls, such as prescreening or surveying employees prior to each work shift to verify they do not have signs or symptoms of the virus and providing for telework and staggered shifts where feasible. Employers with very high and high exposure risk also will need to assess whether the COVID-19 hazards or job tasks necessitate the use of personal protective equipment and provide training for employees to recognize and minimize the hazards of COVID-19.
The rules applicable to medium exposure risk jobs also require employers to implement certain engineering controls relating to air-handling systems and the installation of physical barriers, to the extent feasible, that will help mitigate the spread of virus transmission, and, to the extent feasible, certain administrative and work practice controls, including prescreening or surveying employees prior to each work shift to verify they are not COVID-19 symptomatic and providing alternative work arrangements, such as telework and staggered shifts. Employers with medium exposure risk also will need to assess whether the COVID-19 hazards or job tasks necessitate the use of personal protective equipment.
Additionally, all employers with very high and high exposure risk and employers with medium exposure risk that employ 11 or more employees will need to develop and implement a written infectious disease preparedness and response plan within 60 days after the rules go into effect. This plan will need to, among other things, identify the name(s) or title(s) of the person(s) responsible for administering the plan (which persons must be knowledgeable in infection control principles and practices as they apply to the facility, service, or operation), address the levels of COVID-19 risk associated with the workplace and job tasks, consider contingency plans for situations that may arise from outbreaks, identify basic infection prevention measures to be implemented, provide for the identification, reporting, and isolation of employees known or suspected to have COVID-19, and address infectious disease preparedness and response with respect to third-party businesses and other persons accessing the workplace.
Virginia regulators are developing FAQs and other guidance on the rules to be made available to the public, which guidance likely will include materials to assist in classifying the exposure risks of job tasks, training employees, and developing an infectious disease preparedness and response plan. Venable will continue to monitor these actions, and we are available to provide clients with assistance in complying with the new workplace safety rules. We also can assist in developing monitoring and compliance systems to address regulatory and oversight obligations relating to COVID-19. Please find additional information about regulatory compliance and oversight obligations implicated by the COVID-19 pandemic here.
 Employers also will be required to notify the building/facility owner of the occurrence of COVID-19-positive tests for any employees or residents in the building/facility, and the owner will have to notify all other tenants in the building/facility.