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Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

In July 2020, we reported that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID‑19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID‑19, applicable to all regulated workplaces in the Commonwealth (the “Permanent Standard”). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID‑19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVID-19 workplace safety regulation. § 20B.[1] The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021.  The Permanent Standard will be enforced by the Department of Labor and Industry, which operates the Virginia State Plan for Occupational Safety and Health (“VOSH”).

Like the temporary standard, the Permanent Standard requires all employers to implement certain basic protections and procedures and then increases the protective measures based on whether the “exposure risk level” for the workplace or specific job tasks should be classified as very high, high, medium, or lower. Outside the healthcare industry, first responders, mortuary services, and correctional and detention facilities, Virginia places of employment and job tasks are categorized as “medium” or “lower” exposure risk levels. The difference between “medium” and “lower” exposure risk levels is whether the work requires “more than minimal occupational contact within six feet with other employees, other persons, or the general public …”. § 30.

In the Permanent Standard, “minimal occupational contact” is defined to mean “no or very limited, brief and infrequent contact,” such as remote work, passing in a hallway while six feet apart, and long distance truck driving. § 30. Thus, although most office workspaces would be categorized as lower risk, if employees must even pass in the hallway within six feet of each other, the workplace or task is elevated to the medium exposure level, with its increased program documentation and training requirements. Other examples of the lower exposure levels are single workers behind impermeable clear plastic walls at convenience stores, telecommuting and telework, package delivery “that allows employees to maintain physical distancing from other employees, other persons, and the general public;” and workplaces that have “mandatory physical distancing of employees” from each other and all other persons. Id. Face coverings for employees within the six-foot physical distance parameter does not change the workplace or job task from a “medium” to a “lower” exposure risk level. Id.

The Permanent Standard’s basic requirements for all employers continue be as established in the temporary standard:

  1. Exposure assessment and determination.
  2. Employee notification and access to exposure and medical records.
  3. Return to work policies after being known or suspected to be infected.
  4. Engineering, administrative, and work practice controls, including physical distancing, face coverings, and sanitation and disinfection.
  5. Personal protective equipment ("PPE").
  6. Written infectious disease plans and preparedness plans for all employers unless they only have employees with lower levels of exposure or are a small business (fewer than eleven employees) at the medium exposure level.
  7. Training.

The principal changes made by the Permanent Standard include:

  • While the regulation continues to allow the employer to demonstrate compliance if they comply with equally protective mandatory or non-mandatory CDC guidelines, Virginia’s Commissioner of Labor and Industry must consult with the State Health Commissioner “for advice and technical and before making a determination related to compliance with CDC guidelines.” § 10.E. In addition, an enforcement action cannot be brought against an employer if PPE is not readily available “on commercially reasonable terms” and the employer makes a “good faith effort” to acquire the PPE on such terms. § 10.C.
  • “Face covering” is now defined to match the more recent CDC guidance, i.e., an item “made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers, are considered acceptable face coverings. Face covering shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl.” § 30. A face covering must always cover the nose and mouth and extend under the chin. § 40.I. A face covering is always required, at a minimum, if employees have brief contact without six feet of distancing. For example, if employees pass in the hallway within six feet of each other, they must wear face coverings. § 40.H.
  • While a face shield cannot be considered a substitute for a face covering or any form of PPE except for eye protection, a face shield, meeting certain specifications, may be worn if a face covering cannot be worn “due to medical contraindications.” § 40.J.
  • Acceptable physical distancing can include an office or another solid floor to ceiling barrier only if “six feet of travel distance is maintained from others around the edges or sides of the wall as well.” § 30.
  • Redefinition of “signs” and “symptoms” of COVID‑19. “Signs of COVID‑19” include only “medical conditions that can be objectively observed,” such as fever, breathing trouble, cough, vomiting, new confusion, bluish lips or face. § 30. On the other hand, “symptoms of COVID‑19” are medical conditions “that are subjective to the person and not observable to others,” such as chills, fatigue, and new loss of taste or smell. § 30. Persons are “suspected to be infected” if they have signs or symptoms.
  • Provisions in the temporary regulation requiring that the employer have flexible sick leave policies, consistent with public health guidance, are deleted.
  • Conforming to changes in CDC guidelines since the temporary standard was issued, the Permanent Standard changes the exposure period requiring notice, to employees, other employers’ employees, and the building or facility owner, of a positive case of a fellow employee, subcontractor, contract employee, or temporary employee “present at the place of employment.” The time period of exposure requiring notice now is from 2 days before through 10 days after symptom onset or a positive test reflecting newer CDC guidance. § 40.B.7.
  • Employers must contact the Virginia Department of Health “when the worksite has had two or more confirmed cases of COVID‑19 of its own employees present at the place of employment within a 14-day period testing positive for [the virus] during that 14-day time period.” § 40.B.7.d. This report must be made within 24 hours of the employer’s knowledge and additional cases must continue to be reported “until the local health department has closed the outbreak.”
  • Employers generally can no longer rely on a test-based strategy for return to work after an employee has been infected. Instead, symptomatic employees can return 10 days after symptom onset, if they are fever-free for 24 hours and respiratory symptoms have improved. § 40.C.1. However, employees with “severe illness” “may warrant extending duration of isolation for up to 20 days after symptom onset” and employees “who are severely immunocompromised may require testing to determine when they can return to work.” The employer “shall consider consultation with infection control experts” and VOSH will identify severe illnesses and severe immunocompromised conditions. Id.
  • Employers can rely only on an RT-PCR test for viral RNA to determine that an asymptomatic employee is a known infected person who must be excluded from work for 10 days after the date of the first positive test. § 40.C.2.
  • Employers must pay, or have their health insurance plans pay, for the cost of testing “for return to work determinations;” however, such testing is not required except in the case of the severely immunocompromised. § 40.C.3.
  • A new “hierarchy of hazard controls” is required when multiple employees are occupying a vehicle for work purposes, but. first, the employer must attempt to eliminate the need to share vehicles. § 40.F. If sharing of vehicles must occur, the employer must provide respiratory protection, such as N95 respirators, instead of face masks, unless the employer can show that PPE is not “readily available” for those outside of the health care and first responder workplaces.
  • More detailed requirements are provided for ventilation systems when job tasks or hazards are at very high or high levels of exposure (§ 50.B) or at medium levels of exposure (§ 60.B).
  • As provided in the temporary standard, except for lower levels of exposures and small business at medium levels, employers must have a written Infectious Disease Preparedness and Response Plan (the “Plan”). The Permanent Standard adds that those Plans must address “situations where employees work during higher risk activities involving potentially large numbers of people or enclosed work areas such as at large social gatherings, … parties, restaurants, bars, hotels, … movie theaters, rest stops, airports, bus stations, train stations, … airplanes, etc.” § 70.C.3.a.(4). The Plan also must, consistent with privacy laws, address individual risk factors for severe disease, including age. at § 70.C.3.b.
  • Extensive training and documentation of training continues to be required for all employees, except if they are only at a lower level of exposure. § 80.A. The Permanent Standard clarifies that such training must include: any CDC guidelines or Virginia guidance documents being relied upon in lieu of a specific provision in the Permanent Standard (§ 80.B.2.); risk factors for severe illness, including “advancing age” (§ 80.B.5.); strategies for extending use of PPE when it is in short supply (§ 80.B.8.f.); heat-related illness prevention, including when using PPE and face coverings (§ 80.B.8.g.); and additional methods for employee-specific training certification for all those at high or very high exposure levels (§ 80.G.).
  • For employees only at the lower level of exposure, training requirements are not as rigorous, but now must include the “benefits of wearing face coverings.” § 80.G.5.
  • The Permanent Standard provides that although an employee cannot be retaliated against for wearing a face covering that meets the requirements of the Standard and does not create a hazard, an employer can still “establish . . . and enforc[e] legally permissible dress code or similar requirements addressing the exterior appearance of [PPE] or face coverings.” § 90.B.
  • The Permanent Standard continues to allow employees to raise “a reasonable concern” to the employer, its agent, other employees, a government agency, or “to the public such as through print, online, social, or any other media,” thus making an employer potentially liable for a VOSH citation for enforcing its internal publication policies and procedures. See 90.C.
  • The Permanent Standard concludes by stating that it does not “limit an employer from refusing to do work or enter a location because of a reasonable fear of illness or death,” except pursuant to 16VAC25-60-110.

The Governor’s announcement of the Permanent Standard described VOSH’s enforcement approach. Upon receiving a complaint, VOSH will work with the employer to resolve the issue without an investigation. If VOSH has serious concerns or the employer is subject to multiple complaints, VOSH will open a formal investigation leading to citations or other enforcement action. To date, less than 1% of all complaints have been formally investigated, and less than one-third of those formally investigated have received a citation.

As the COVID‑19 workplace safety standard longest in effect, the Virginia standard has served as a model for other State-plan States and for the Biden Administration. Indeed, in his February 4, 2021, Senate confirmation hearing for the position of Secretary of Labor, he praised the Virginia Permanent Standard. If OSHA issues its own emergency temporary standard, it likely will have many of the elements in the Virginia Permanent Standard, which arise from, but significantly expand standard elements long found in US OSHA guidance.

For more information or advice on the Virginia COVID‑19 Permanent Standard, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found in this blog and in Jenner & Block’s COVID‑19 Resource Center.

 

[1] All citations are to subsections of the Permanent Standard at 16VAC25-220, unless otherwise specified.