By:  Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northan announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northam directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, took effect on July 27, 2020.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings.

Generally, the ETS requires Virginia employers to:

1. Assess potential exposures to COVID-19 in their workplaces; and
2. Develop and implement infection control plans that include:
   • mandating social distancing measures
   • requiring face coverings for employees in customer-facing positions and wherever social distancing cannot be assured
   • providing frequent access to hand washing or hand sanitizing
   • regularly cleaning high-contact surfaces.
   • adopting robust sanitation procedures
   • ensuring appropriate air handling systems
   • implementing policies and procedures for isolating and removing known COVID-19 or suspected COVID-19 employees from the workplace, and for when it is safe for them to return to work (using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances)
   • requiring all employees to be notified within 24 hours if a coworker tests positive for COVID-19
3. Provide employment protection for employees who wear their own PPE or who raise a reasonable concern about infection control.

For purposes of the mandatory COVID-19 Hazard Assessment, Virginia employers will be required to separate on-site hazards and tasks into four risk categories: “very high,” “high,” “medium” and “lower.” Each category has a separate list of precautions employers are required to take in order to mitigate against COVID-19 infections, ranging from robust PPE and sanitation mandates for employees in “very high” risk workplaces, to more lenient restrictions for “lower” risk tasks and employees who have “minimal occupational contact with other employees, other persons, or the general public.”

The new VOSH rule reiterates that cloth face coverings do not qualify as PPE under the ETS, since they are not tested for efficacy and their primary purpose is to prevent the wearer from spreading COVID-19 rather than protecting the wearer from infection.  As a result, employee use of face coverings for contact within six feet of coworkers or others will not be deemed to be a sufficient administrative or work practice control on its own to achieve minimal occupational contact.

Employees at “medium” “high,” or “very high” risk will need to complete training on their job’s anti-infection measures, with written certifications required to verify compliance.

In order to designate a task or position as “lower” risk, Virginia employers will need to install significant “engineering, administrative and work practice controls,” such as floor to ceiling physical barriers, staggered work shifts and remote work, in addition to the ETS’s general requirements that employers 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, including limiting access to work sites and implementing remote work and staggered shifts “to the extent feasible.”

Note that an interesting element of Virginia’s ETS is that an employer may avoid a violation of the ETS by complying with requirements contained in the various workplace focused CDC guidance publications designed to mitigate COVID-19 related hazards or job tasks addressed by the ETS.

Virginia companies could face financial penalties ranging from $13,000 up to $130,000 for each violation if they are found to have violated the requirements of the ETS.

Other states may soon be following Virginia’s lead.  Oregon is already in the process of drafting a similar set of rules that the state intends to make available by the end of July, with the hope of full implementation in September.  And, depending in part on the initial success or challenges of the Virginia ETS, other states, could adopt similar rules.  We will continue to keep you updated as more states consider promulgating these types of measures in the coming months.

Conn Maciel Carey’s COVID-19 Task Force, made up of OSHA and Labor & Employment attorneys, has been working diligently with employers across the country, and in particular those in the DMV area, to develop workplace-specific written Exposure Control and Response Plans to address these essential COVID-19-related issues.  As a result, we are prepared to assist Virginia employers quickly come into compliance with VOSH’s new regulatory requirements, so that you can both keep your employees safe and avoid regulatory liability.

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In the meantime, for additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.