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VA COVID-19 Workplace Safety Rules

February 1, 2021

Governor Northam approved permanent version of COVID-19 workplace safety rules. Employers should familiarize themselves with the new standard which is attached to this memorandum.

On Wednesday, January 27th, Governor Northam announced that he has approved a permanent version of its COVID-19 workplace safety rules, which mandates employers implement pandemic precautions such as social distancing and masks.

The permanent standards will remain in place at least until the end of the pandemic, at which point the Commonwealth’s Safety and Health Codes Board can reconvene to determine whether the regulations are still necessary.

As a reminder, last summer, the Commonwealth became the first state in the country to approve an emergency temporary standard for COVID-19 safety and prevention. The Emergency Standard (ETS) served as the foundation for the newly adopted permanent measures. As detailed in previous reports on the public hearings, the regulations were supported by union organizations and employee or worker advocacy groups. Proponents urged the importance of protecting workers from COVID-19 exposure. Many groups representing the Virginia business community voiced opposition to the standard. The opponents highlighted concerns for placing burdensome regulations on businesses that are already struggling due to the pandemic.

The Permanent Standard uses the language from the ETS to classify job categories as high, medium, and low exposure risk. Additionally, the standard continues to require employers to provide self-monitoring methods for COVID-19 exposure, develop policies for when an employee has COVID-19 symptoms, offer notice to any individuals exposed within the workplace, and establish return to work procedures. This list is not exhaustive; much of the language in the Permanent Standard comes from the ETS.

The changes made to the Permanent Standard include:

- While the ETS had a sunset date on January 26, the standard will be permanent, but reviewed for necessity upon the Governor lifting the state of emergency in Virginia. After significant debate about whether or not the permanent standard can end in tandem with the state of emergency, the board determined that the standard cannot be legally contingent upon an executive order that can change in the future and the Safety and Health Codes Board has no authority over it. 

- In following CDC guidance, the Board changed the definition of “close contact” to include exposure within six feet for a total of at least fifteen minutes of someone known or suspected to have COVID-19.

- While employers were originally required to report every positive case of COVID-19 to the Virginia Department of Health, employers will now only report if two or more cases that occur within a 14-day period. This aligns with VDH’s “outbreak” definition and other reporting norms.

- As directed by the CDC, employees are permitted to return to work after ten days and one symptom free day.

- In the sections related to jobs classified as a “very high,” “high,” and “medium” exposure risk, the board agreed on a significant portion of new language related to ventilation controls and air handling systems. Employers with employees in these categories must meet certain requirements. For example, this section outlines stipulations pertaining to increased airflow and movement, cleaning, and evaluations.

- The Permanent Standard includes a couple of changes to requirements about personal protective equipment. These points caused particular debate during the board meeting. While the standard draft originally included language about PPE shortages and training workers on reusing PPE, the Board decided instead to keep language that requires employers to provide new PPE and focus on enforcement discretion in order to not penalize employers who make a good faith effort attain PPE during shortages. In recognizing widespread shortages of N95 masks and respirators, the standard eliminates the necessity of complying with high respiratory standards when multiple employees travel in work vehicles. The standard also stipulates that face shields are not face coverings unless a medical condition prevents someone from wearing a face covering.

Impacts to Restaurant Industry

Restaurants are classified as “Medium Exposure Risk”. The final standard includes rules regarding this exposure risk category (Pages 41-46). Some, though not all, of the rules require things such as:

- When feasible deliver products through curbside pick-up or delivery

- Where feasible, employers shall install physical barriers such as clear plastic sneeze guards, to aid in mitigating the spread of SARS-CoV-2 virus transmission.

- Where feasible Increase physical distancing between employees at the work site to six feet.

In addition, the new standard requires “Medium Exposure Risk” employers with eleven or more employees to develop and implement a written Infectious Disease Preparedness and Response Plan.

Employers should familiarize themselves with the new standard which is attached to this memorandum.