Permanent COVID-19 workplace rules are adopted for Virginia businesses

January 30, 2021

Virginia’s COVID-19 workplace safety rules are now permanent.

Employers will be required to comply with the updated and amended rules until the state’s Safety and Health Codes Board makes the decision that they are no longer needed, likely no earlier than 14 days following the expiration of the governor’s COVID-19 state of emergency.

In short, these complex and detailed requirements might be around for a very long time, and potentially indefinitely.

With the exception of the minority of employers under federal Occupational Safety and Health Administration jurisdiction, all public and private employers in Virginia must comply with the new regulations.

The standard sets forth requirements for administrative and work practice controls, environmental and engineering controls, training, reporting mandates, and, in some cases, implementation of infectious disease preparedness and response plans.

Like with the temporary ones, the permanent standard assesses “exposure risk level” based on very high, high, medium and lower exposure risk for employment situations, and assigns protections and obligations based on each risk level:

  • Very high exposure risk settings include those employees performing specific aerosol-generating procedures on a person known or suspected to be infected with COVID.
  • High exposure risk includes general health care, first responder, mortuary, transport or other services to a patient known or suspected to be infected with COVID, and all correctional facilities.
  • Medium exposure risk incorporates the majority of workplaces, including processing plants, commercial transportation, educational settings, restaurants and bars, retail, manufacturing, construction, in-home services, call centers, salons, sports and entertainment venues, fitness centers and airports.

This level also includes those environments where the employee is not exposed to known or suspected individuals infected with COVID-19, but deliver health care and support services such as nursing and residential facilities, outpatient medical facilities and clinics, drug treatment programs, mental health facilities, home health care, doctors’ and dentists’ offices, and first responders services.

With the discussion around in-school learning, teachers are included among the medium-risk exposure industries.

  • Lower exposure risk includes those with minimal contact with others, like remote workers, and delivery services.

Employers cannot discharge or discriminate against any employee exercising rights under the regulations.

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The use of masks and other face coverings has been modified. The definition of a face covering has been updated to include a covering “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.”

It clarifies that, “Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers are considered acceptable face coverings.”

The standard also clarifies that face shields made of transparent, impermeable materials are not a substitute for face coverings, although they appear to be an acceptable reasonable accommodation under certain circumstances for those who cannot otherwise wear face coverings.

The emergency temporary rules, which went into effect last summer, did not require employees to wear face coverings, according to Courtney Malveaux, the immediate past Virginia Labor Commissioner and current co-leader of the Jackson Lewis law firm’s workplace safety and health practice group.

“The permanent standard is a little different in that it requires employers to impose face covering mandates in limited circumstances, such as when employees can’t practice physical distancing or when they are in customer facing jobs,” Malveaux said. “Unfortunately, the governor’s Executive Order 72 contradicts both standards, as it requires people to wear face coverings while in an indoor area shared with others.

“It leaves employers scratching their heads, especially if their employees are spaced far apart from each other.”

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The new standard makes it mandatory to report to the Virginia Department of Health if two or more employees test positive, and also to the Virginia Department of Labor and Industry if three or more employees test positive within a 14-day period.

Employers must comply with the updated formula for employees returning to work following quarantine based on a variety of factors, including a newly added consideration for “severely immunocompromised” employees.

The regulations make no recommendations regarding employees who have received a COVID-19 vaccination, and make no suggestion on whether employers can or should make vaccinations mandatory.

This means that even if the entire workforce has been vaccinated with no exposure to the public, the employer still must comply with its restrictions.

The federal Occupational Safety and Health Administration recently updated its guidance, but is also considering implementing a similar standard.

“A chief concern for employers is that, as vaccines come online, will the agencies ease restrictions? The science and the situation are changing fast. Static standards like these may become obsolete very quickly,” Malveaux said.

And yet it’s in effect permanently until the state’s Safety and Health Codes Board considers whether it should remain in place once the governor ends the state of emergency. All employers should review the regulations at www.doli.virginia.gov to ensure compliance.