On July 15, the Virginia Safety and Health Codes Board approved temporary emergency standards to prevent the spread of the coronavirus in Virginia workplaces. Expected to go into effect during the week of July 27, the new workplace safety standards are the first of their kind in the country. The regulations will impose large monetary penalties on companies that fail to implement various COVID-19 safety measures.
Virginia state officials, under the direction of Governor Ralph Northam, purportedly spearheaded implementation of the regulations because of what they deemed to be a lack of enforcement on the federal level, specifically from the Occupational Safety and Health Administration (OSHA). At this time, OSHA has declined to issue a uniform federal standard for workplace safety in the wake of the COVID-19 pandemic, creating confusion and raising numerous questions by employers that continue to receive conflicting guidance from state and local agencies. In response, Gov. Northam issued Executive Order 63, which directed the Commissioner of the Virginia Department of Labor and Industry to establish “emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace.”
The regulations impose mandatory requirements on all employers, which include the following.
- Assessment of Job Risk Levels: Various hazards or job tasks at the same place of employment can be designated as “very high,” “high,” “medium,” or “lower” exposure risk.
- Notification Requirements: Employers must notify employees, who employers reasonably believe may have been exposed, that a co-worker has tested positive for COVID-19 within 24 hours of discovery; the infected co-worker’s identity and name must be kept confidential in accordance with the Americans with Disabilities Act and other applicable federal and Virginia laws and regulations. Employers must also provide notice of same to their building/facility owner, the Virginia Department of Health, and the Virginia Department of Labor and Industry.
- Return to Work Policies: Employers must develop and implement policies and procedures for known COVID-19 or suspected COVID-19 cases, as well as known asymptomatic, employees who return to work. Notably, employees who are known, or suspected, to be positive for COVID-19 cannot return to work for 10 days or until they receive 2 consecutive negative test results.
- Enforcement of Physical Distancing: Employers must establish and implement policies and procedures designed to ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property.
- Focus on Adequate Sanitation, Disinfecting, and Personal Protective Equipment: As needed, employers shall maintain compliance with specified cleaning standards and use of personal protective equipment.
Additionally, employers are prohibited from discharging or discriminating against employees who raise a reasonable concern about infection control.
The regulations will be enforceable by the Virginia Department of Labor and Industry’s Occupational Safety and Health Program, which can inspect workplaces and impose financial penalties for violations based on the agency’s standard scale of violations, ranging from Other-than-Serious to Willful, with maximum penalties ranging from $13,494 per violation to $134,937 per violation.
The regulations will expire within six (6) months of the effective date, upon expiration of the governor’s state of emergency, or when superseded by a permanent standard, whichever occurs first. We anticipate other states will follow Virginia’s lead and implement their own emergency standards in the coming weeks. For example, Oregon anticipates adopting its own set of regulations by September 1.
It is imperative that employers stay on heightened alert for the patchwork of state regulations we expect in the near future. We recommend, among other actions, that employers review their policies and take measures to ensure compliance. Should your organization need assistance implementing these regulations, especially with drafting return-to-work policies, please contact the authors of this blog, Sara Nasseri, Nichole Atallah, or Sarah Nash, members of PilieroMazza’s Labor & Employment Group.