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What You Need to Know About Virginia’s New COVID-19 Workplace Safety Rule

On July 15, the Virginia Department of Labor and Industry approved new mandatory workplace standards for employers to control, prevent, and mitigate the spread of COVID-19 to and among employees and employers.

The new Rule, which is the first of its kind in the country, is scheduled to go into effect on July 27, 2020. The emergency temporary workplace safety standards will remain in effect for six months, unless the Rule is repealed or replaced by a permanent rule.

Going forward, Virginia employers may no longer rely on the guidelines issued by the Centers for Disease Control unless they are as strict as or stricter than the Virginia’s new COVID-19 workplace safety Rule.

Workplace Safety Standards

Under the new Rule, all Virginia employers are required to mandate and enforce physical distancing between their employees, either through repeated announcements or by decreasing worker density. If the nature of the work does not allow for physical distancing, employers must provide employees with protective equipment, respiratory protection, and frequent access to hand washing or hand sanitizer.

Employers must also develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19 and no alternative diagnosis has been made (such as testing positive for influenza). Employees who are known or suspected to be infected with COVID-19 generally cannot return to work for 10 days from when the symptoms first appeared or until they receive two consecutive negative tests.

The new workplace safety standards also require employers to establish systems for notifying employees within 24 hours if they have been exposed to COVID-19. If three or more employees test positive for COVID-19 over a two-week period, the employer must report the information to the Virginia Department of Labor and Industry.

In addition to the general requirements, the new Rule also has different workplace safety standards for jobs and industries depending on the risk level to employees of exposure to COVID-19:

  • Very high exposure risk job tasks are those in places of employment with high potential for employee exposure to known or suspected sources of COVID-19, such as performing medical, postmortem, or laboratory procedures;
  • High exposure risk job tasks are those in places of employment with high potential for employee exposure inside six feet with known or suspected sources of COVID-19, that are not otherwise classified as “very high,” such as performing health care, emergency responder, medical transport, or mortuary services;
  • Medium exposure risk job tasks are those in places of employment with more than minimal contact inside six feet with coworkers or others who may have, but are not known or suspected to have, COVID-19, such as meat processing, commercial transportation, retail, and jobs located at schools, restaurants, theaters, and grocery stores or customer premises; and
  • Low exposure risk job tasks are those that do not fall into the other three classifications and do not require contact inside six feet with persons who are known or suspected to have, or even may have, COVID-19. 

Employers must determine the exposure risk level for each job task that their workers perform and customize their COVID-19 workplace safety protections accordingly. Among other itemized workplace safety requirements:

  • Employers with employees performing job tasks classified as “very high” or “high” must ensure appropriate air-handling systems, screen or survey employees, limit access to the area, provide personal protective equipment, and install physical barriers, where feasible, to aid in mitigation the spread of COVID-19;
  • Employers with employees performing job tasks classified as “very high,” “high,” or “medium” with 11 or more employees, must develop and implement an infectious disease preparedness and response plan;
  • Employers with employees performing any job tasks classified as “very high,” “high,” or “medium” must provide training to all employees of the hazards and characteristics of COVID-19 and workplace safety practices, regardless of employee risk classification; and
  • Employers with employees performing job tasks classified as “medium” must ensure appropriate air-handling systems and to the extent it is feasible, screen or survey employees, provide masks or face coverings, and implement physical distancing practices.

The new Rule also protects employees and whistleblowers from discrimination and retaliation.

Penalties and Enforcement

The new workplace safety standards will become enforceable 60 days after the new Rule takes effect. Covered employers who violate the new workplace safety standards face civil penalties up to approximately $130,000 per violation for willful or repeated violations. And, if necessary to protect worker safety, the Virginia Occupational Safety and Health Program has the authority to close businesses in severe cases.

Takeaways

Virginia’s temporary emergency COVID-19 workplace safety Rule applies to all private employers in the Commonwealth – the only question is to what extent. Now is the time for employers to review their business’s job tasks, policies, practices, and procedures, as well as preparing any necessary trainings or response plans, to ensure compliance with the new Rule. Employers in other states should also take note of Virginia’s workplace safety Rule, as other states are in the process of following suit.

Josh Schmand is a litigation and employment attorney who works on complex business, corporate, and commercial disputes, as well as employment matters, advising clients on the risks and benefits of litigation, preparing for trial when needed, and serving as a determined advocate. For more information, contact Josh at jcschmand@lerchearly.com or (301) 347-1273.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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