January 28, 2021

Virginia Adopts Permanent COVID-19 Workplace Safety Standard for Employers

8 min

Virginia's permanent COVID-19 workplace safety standard for employers became effective on January 27, 2021, after Governor Ralph Northam approved the standard adopted by the Virginia Department of Labor and Industry's Safety and Health Codes Board. The permanent standard closely tracks the emergency temporary standard the Safety and Health Codes Board adopted in July 2020. It is intended to slow the transmission of COVID-19 and protect Virginia workers by requiring employers to implement certain policies and procedures relating to personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces. The standard applies to all employers, employees, and places of employment that are under the jurisdiction of the Virginia Occupational Safety and Health program.

"While the end of this pandemic is finally in sight, the virus is still spreading, including several highly contagious variants, and now is not the time to let up on preventative measures," said Governor Northam. "I am grateful to the many businesses and organizations who have been with us throughout this process and continue to take the necessary steps to operate safely. These standards will reduce the risk of COVID-19 exposure and protect the health and safety of Virginia workers, consumers, and communities as we move our Commonwealth forward together."

The workplace safety requirements will remain effective throughout the pandemic, and the Safety and Health Codes Board will reconvene within 14 days of the expiration of Governor Northam's COVID-19 emergency declaration to determine whether there is a continued need for the standard.

The Virginia Department of Labor and Industry will enforce the permanent standard. After receiving a complaint, the Department will work with the employer to comply with the requirements without a formal investigation. If serious concerns arise in the fact-finding interviews or the Department receives multiple complaints, the Department will commence a formal investigation. To date, the Department has received over 13,000 complaints around workplace safety due to COVID-19, with 100 needing a full investigation because of serious concerns and 27 employers being cited.

At least six other states have adopted comprehensive COVID-19 workplace safety standards in the months since Virginia's first-in-the-nation emergency temporary standard went into effect. On January 21, 2021, President Biden signed an executive order directing the federal Occupational Safety and Health Administration to issue by March 15, 2021 guidance for employers on keeping workers safe and preventing COVID-19 exposure.

Requirements for All Employers

Requirements applicable to all employers under the permanent standard 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 when they are experiencing such signs or symptoms;
  • Implementing procedures that will prevent employees known to have or suspected of having COVID-19, including subcontractor, contract, and temporary employees, 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 employee1;
  • Establishing and implementing a return-to-work policy for employees known to have or suspected of having COVID-19;
  • Establishing and implementing policies and procedures to ensure that employees observe physical distancing while on the job and during paid breaks on the employer's property;
  • Closing or controlling access to common areas, breakrooms, or lunchrooms;
  • Utilizing certain controls to mitigate exposure for multiple employees occupying a vehicle for work purposes;
  • Ensuring compliance with respiratory protection and personal protective equipment standards for the employer's industry if the nature of an employee's work or the work area does not allow the employee to observe physical distancing requirements;
  • Requiring a face covering when it is necessary for employees solely exposed to lower-risk hazards or job tasks to have brief contact with others inside of six feet (such as passing another person in a hallway that does not allow physical distancing of six feet);
  • When face coverings are required under the standard, ensuring they are worn over the wearer's nose and mouth and extend under the chin;
  • 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;
  • Providing employees with personal protective equipment and ensuring the equipment's proper use in accordance with applicable laws and regulations when engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection; 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, other employees, a government agency, or the public 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 standard 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 healthcare fields, jails and correctional facilities, or other fields 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 presenting 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." Jobs in the medium risk category include poultry and meat processing, agricultural and hand labor, transportation, educational settings, restaurants, bars, grocery stores, 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. These employers must also 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.

The requirements 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. Also, these employers must take, 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, providing alternative work arrangements, such as telework and staggered shifts, delivering services remotely, and delivering products through curbside pick-up or delivery. 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 by March 26, 2021. 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 and address contingency plans for situations that may arise from outbreaks; identify 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.

Employers with very high, high, or medium exposure risk also will need to provide all employees with training on recognizing and minimizing the hazards and characteristics of COVID-19, which training must be provided by March 26, 2021. The training must include the requirements of Virginia's permanent standard, the signs and symptoms of the COVID-19 disease and the characteristics and methods of transmission of the virus, risk factors for severe COVID-19 illness, safe and healthy work practices, and personal protective equipment. Employers with low exposure risk will need to provide certain written or oral information to employees regarding COVID-19 hazards, characteristics and symptoms, and measures to minimize exposure.

Additional Information

Virginia's final permanent standard can be found here. Infectious disease preparedness and response plan templates and training guidance are available at doli.virginia.gov. Venable is available to provide clients with assistance in complying with the new workplace safety rules and developing monitoring and compliance systems to address regulatory and oversight obligations relating to COVID-19.

[1] Upon the occurrence of COVID-19-positive tests for any employees or residents at a work site, the employer also must notify other employers whose employees were present at the work site during the same time period and the building/facility owner (and the building/facility owner will have to notify all other tenants in the building/facility). Additionally, under certain circumstances, an employer will need to report positive tests for employees to the Virginia Department of Health and/or Virginia Department of Labor and Industry.