On August 26, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) voted 8 to 5 to update and continue its COVID-19 permanent workplace safety standard. That vote came despite the fact that the bulk of COVID-19 business requirements issued by Virginia Governor Ralph Northam ended on May 31 and the Commonwealth’s COVID-19 state of emergency declaration ended on June 30, 2021. After the Board’s vote and review by the Governor, the updated standard became effective upon publication on September 8, 2021 and replaces the earlier permanent standard promulgated in January. While the original standard’s general framework remains largely intact, the updated standard contains several notable new or substantially updated requirements and attempts to more closely align Virginia’s regulations with the guidance from the Centers for Disease Control and Prevention (CDC).
Attempt to align with CDC guidance
At the Governor’s request, the Board amended the language to better align the Virginia standard with the CDC’s often changing COVID-19 guidance. The updated Virginia standard removes language that merely allowed employers to follow CDC guidelines where it provided “equivalent or greater protection” than the Virginia standard, and instead now states that an employer who “actually complies” with current CDC guidelines (both mandatory and non-mandatory) will be considered to be in compliance with the Virginia standard. This amendment should ease the burden on employers faced with dueling federal and the state requirements. Nonetheless, employers still should be mindful that only “actual compliance” with current CDC guidelines will be evidence of good faith in any enforcement proceeding by the Virginia Occupational Safety and Health Program (VOSH) under the updated standard.
Notable workplace safety changes
While the overall framework in the original standard remains intact (with universal requirements for all covered employers, heightened requirements for higher-risk employers, an infectious disease plan for higher risk employers, certain training requirements, and anti-discrimination protections), the updated Virginia standard makes a number of notable changes that employers should carefully review:
- Mandatory written COVID-19 policy: The updated standard now requires all covered employers to implement a COVID-19 policy, covering areas such as (i) workplace safety practices and procedures, (ii) mandatory reporting, (iii) return to work procedures after a COVID-19 exposure or diagnosis, (iv) practices for workplace visitors, and (iv) a method to receive anonymous complaints of violations. Employers will need to review any existing policies promptly to ensure compliance with the updated standard and where needed, update their policies.
- Updated hazard assessment: While the updated standard removes the earlier risk designations of very high, high, medium, and lower risk employees, it continues to require that employers conduct a workplace safety hazard assessment of each job position (and a PPE assessment for certain positions). It also introduces the concept of a “higher-risk” workplace, which includes employers with mixed-vaccination status employees, work places in areas of substantial or high community transmission, or with otherwise at-risk employees. Employers will need to conduct or update existing hazard assessments to reflect these updated hazard concepts.
- Updated workplace safety practices: The updated standard changes many of the applicable workplace safety practices and procedures to differentiate between fully vaccinated employees and employees who are unvaccinated or otherwise at risk. The updated standard also provides for enhanced safety requirements for higher-risk workplaces.
- Updated screening requirements: While the updated standard requires all employers to require employees to report if they are experiencing any signs and symptoms of COVID-19, the daily health assessment or screening requirement now only applies to higher-risk workplaces.
- Face covering requirement: The updated standard now requires employers to provide and require face coverings for employees who are not fully vaccinated, employees who are fully vaccinated employees in areas of substantial or high community transmission, and employees who are otherwise at-risk, with certain exceptions and accommodation requirements.
- Revised reporting requirement: The updated standard continues to require that employers report to the Virginia Department of Health (VDH) when there are two or more confirmed COVID-19 cases at the worksite within a 14-day period and now aligns this same reporting standard to DOLI (previously reports to DOLI were only for three or more cases). VDH and DOLI have established a combined online reporting mechanism.
- Updated return to work requirements: The updated standard now requires that an employee with a known exposure to someone with COVID-19 must follow testing and quarantine guidance by the VDH. An employee suspected to have COVID-19 may only be allowed to return to work after a negative PCR test (paid for by the employer), per the advice of a healthcare professional or VDH, or consistent with CDC guidance.
- Updated infectious disease control plan: The updated standard requires employers with higher-risk workplaces and 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan covering certain specific practices and to train employees on such plan. The deadline to implement such a written plan is October 8, 2021.
- Updated training: The updated standard requires employers with higher-risk workplaces to provide COVID-19 training to employees on the requirements of the standard as well as site-specific procedures to be followed (although employers may satisfy the training requirement by providing fully vaccinated employees’ written information in lieu of training). The deadline to conduct the required under the updated standard training is November 7, 2021.
Application to healthcare employers
Except for the mandatory reporting requirements to VDH and DOLI and the standard’s anti-discrimination provision, the updated Virginia standard suspends the application of the permanent standard for healthcare employers covered by the federal COVID-19 Healthcare Emergency Temporary Standard (ETS), which became effective earlier in June. The updated standard will only apply the healthcare employers if the federal healthcare ETS expires, is rescinded, or is stricken by a state or federal court. Therefore, healthcare employers covered by the federal healthcare ETS should continue following the federal healthcare ETS as the applicable primary workplace safety standard.
Potential impact by announced federal OSHA vaccine mandate
The same week that Virginia updated its permanent standard, the White House announced that federal OSHA is developing an emergency rule to require all employers with 100 or more employees to mandate vaccination or provide proof of a weekly negative test. When federal OSHA enacts an emergency federal requirement, for states that operate their own state occupational plan under OSHA (such as Virginia under VOSH), the state agency will be required to choose to either amend their own standards to incorporate the federal requirement or make a determination that the state standard is “at least as effective” as the federal standard. Therefore, if and when federal OSHA issues any such federal rule, VOSH will have 30 days from the promulgation of any such federal rule to determine which course of action it will take. This is the same procedure VOSH utilized when adopting the federal healthcare ETS for Virginia healthcare employers.
Virginia employers should immediately review the updated Virginia standard to determine how their operations may be impacted.