On July 15, 2020, the Virginia Department of Labor and Industry (DOLI) Safety and Health Codes Board voted 9-2 to approve the nation’s first emergency workplace regulation related to COVID-19. The new regulation was issued in response to Virginia Governor Ralph Northam’s directive in May 2020 to address workplace safety issues in Virginia given the lack of response from the federal Occupational Health and Safety Administration (OSHA). While the final text of the regulation has yet to be issued, the regulation will require Virginia employers to implement various policies and procedures to reduce the spread of COVID-19 in the workplace.
Virginia has established the Virginia Occupational Safety and Health (VOSH) to oversee workplace and safety compliance. While VOSH’s regulations mostly follow OSHA standards, VOSH can establish additional workplace safety standards beyond OSHA’s requirements.
Since the outbreak of the COVID-19 pandemic in the United States, many state officials and employee advocacy groups have been waiting for OSHA to take an active role in protecting workers from the spread of the virus. While OSHA issued guidance for employers on safety standards related to COVID-19, the guidance is non-binding. Multiple parties, from lawmakers to workers’ advocate organizations, have attempted to get OSHA to issue an emergency standard related to COVID-19, but OSHA has thus far declined to do so.
In May 2020, Governor Northam issued an executive order calling for increased workplace safety standards for COVID-19, given the lack of federal guidelines. Governor Northam is not alone in his frustration. Oregon OSHA, for example, is expected to issue a similar regulation shortly, following that state’s Governor Kate Brown issuing numerous executive orders, including the expansion of mandatory face coverings, intended to slow the spread of COVID-19. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) continues to urge OSHA to create an emergency workplace standard for COVID-19, and it is currently appealing the U.S. Court of Appeals for the D.C. Circuit’s rejection of the AFL‑CIO’s request for an order mandating OSHA create such a standard.
Effective Date and Coverage
The new regulation will become effective once it has been published in a Richmond, Virginia general circulation newspaper, which is expected to happen during the week of July 27, 2020. DOLI states that the regulation is still being finalized and that training and outreach resources for employers will be provided. It is anticipated to be in effect for six months from its effective date, unless the Safety and Health Codes Board extends the regulation or repeals it earlier. Most private and public employers in Virginia will have to comply with the regulation.
The regulation will require employers to assess whether their workplace is at “very high,” “high,” “medium,” or “lower” risk for exposure to COVID-19. The regulation provides various factors for employers to consider in assessing the risk level within their workplace, including whether the work environment is outdoors or indoors, the type of tasks being undertaken, and whether there are shared spaces for employees to use.
Employers that determine their workplace presents hazards or job tasks at the “very high,” “high,” or “medium” risk levels must:
- Provide COVID-19 related trainings to their employees within 30 days of the effective date of the regulation; and
- Implement a written Infectious Disease Preparedness and Response Plan within 60 days of the effective date of the regulation.
Employers that determine their workplaces are at the “low” risk level are not required to develop the response plan or provide training, but they will be required to inform their employees in writing about hazards/characteristics of COVID-19 and measures to minimize exposure. VOSH plans to develop a written information sheet for employers to use to comply with the notification requirement.
Regardless of risk level, the new regulations will require all employers to take various actions to mitigate the risk of exposure of COVID-19 in their workplaces, including:
- Encourage employees to self-monitor for COVID-19 symptoms;
- Develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19;
- Bar from the workplace employees or other persons, including customers and visitors, who have known or suspected COVID-19 cases until cleared to return to work, although employees can still telework during that period;
- Discuss with subcontractors, temporary placement agencies, and staffing firms that service the employer the importance of having their workers who are known or suspected to have COVID-19 cases to stay home and not report to work until cleared to return;
- In accordance with law (including HIPAA and the ADA), develop and implement policies and procedures for employees to report when they have a suspected or confirmed COVID‑19 case;
- Within 24 hours of discovering a confirmed COVID-19 case in the workplace, inform: (a) employees and other employers’ employees who may have been exposed of their possible exposure; (b) the building owner; and (c) VOSH, while maintaining confidentiality of the infected employee in accordance with the ADA and other applicable law;
- Notify VOSH if three or more persons present at the workplace test positive within a two-week period;
- Develop and implement policies about return to work for known or suspected cases of COVID-19 using either a symptom‑based or test‑based strategy;
- Develop policies and procedures to ensure employees observe physical distancing on the job and at paid breaks on employer’s property, including using announcements and signs to promote distancing and taking actions to decrease congregation of personnel within the workplace;
- Comply with respiratory and personal protective equipment standards applicable to the employer’s industry if social distancing is not possible and allow for reasonable accommodations for medical conditions;
- Close or control access to common work areas, such as breakrooms and cafeterias;
- Implement various sanitation measures for commonly used areas; and
- Provide flexible sick leave, telework, and staggered shifts when feasible.
Employers that comply with Center for Disease Control guidelines that provide the same or equal protection as the regulation will be considered compliant.
VOSH will be responsible for the enforcement of the new regulation. Employers that violate these new mandates can face fines of up to $130,000 for willful or repeated violations, with smaller fines for lesser violations. VOSH will also consider good‑faith efforts to comply with the regulations and CDC guidance when determining whether an employer is in compliance.
The regulation also prohibits employers from retaliating against employees who raise reasonable concerns about COVID-19 infection risks in the workplace, whether that concern is raised with the employer, co-workers, government agencies, or the media, including through social media. While the current version of the regulation does not provide employees with a private right of action for retaliation or violations of the regulation, as of July 1, 2020, Virginia’s whistleblower protection law provides a private right of action for retaliating against employees for reporting any violation of federal or state law.
In light of this new regulation, Virginia employers may want to reassess whether remote work is possible. If an option exists for most or all employees to telework, employers may want to allow for such telework while this rule is in effect. Even if full telework is not possible, staggered shifts or days could also mitigate some of the compliance and logistical challenges created by the new rule.
Where having staff onsite is necessary for the business, employers should review their current COVID-19-related practices and procedures to ensure that they comply with the new regulation for any employees reporting to the workplace. Employers that determine their workplace is at the higher risk levels of exposure will need to consider putting more extensive mitigation efforts in place.
Given the inaction at the federal level, more states are likely to follow Virginia’s lead. A number of other states have their own OSHA plans, including California, Maryland, Oregon, and Washington. Interestingly, OSHA retains the right to revoke state plans and require that only federal standards be applied. Whether it will do so if more states enact regulations similar to Virginia remains to be seen.
Morrison & Foerster summer associate Marcus Kennedy-Grimes contributed to the writing of this post.