VIRGINIA ANNOUNCES AN EMERGENCY TEMPORARY STANDARD ON WORKPLACE SAFETY

On July 15, 2020, the Virginia Department of Labor and Industry adopted Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19 (“Standard”). The Standard is appliable to “every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the VOSH program[,]” § 16VAC25-220-10(C).

The Standard classifies employment settings “based on the exposure risk level presented by SARS-CoV-2 virus-related and COVID-19 disease-related hazards present or job tasks undertaken by employees at the place of employment” as “Very High,” “High,” “Medium,” and “Lower.” § 16VAC25-220-10(E). The Standard provides requirements that all employers must implement, § 16VAC25-220-40, and additional requirements depending on whether an employment setting has hazards present or job tasks that are considered “Very High,” “High,” § 16VAC25-220-50, or “Medium,” § 16VAC25-220-60.

If an employment setting has hazards present or job tasks that are considered “Very High” or “High,” or if an employment setting has hazards present or job tasks that are considered “Medium” and there are eleven or more employees in an employment setting, an employer must also create an infectious disease preparedness and response plan within sixty (60) days of the effective date of the Standard. § 16VAC25-220-70. Employers with an infectious disease preparedness and response plan must train their employees on the plan within sixty (60) days of the effective date of the Standard. § 16VAC25-220-20. In addition, employers considered “Very High,” “High,” or “Medium” must conduct specific employee training outlined in § 16VAC25-220-80(B) within thirty (30) days of the effective date of the Standard, § 16VAC25-220-20, and may be required to conduct retraining in certain situations. § 16VAC25-220-80(E).

The Standard does afford employers some flexibility in implementing the above requirements:

To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS- CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer’s actions shall be considered in compliance with this standard. An employer’s actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-COV-2 and COVID19 related hazards or job tasks addressed by this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard.

§ 16VAC25-220-10(G)(1).

Specific documentation of compliance with the requirements of this Standard and training of employees may be required depending on whether an employment setting has hazards present or job tasks that are considered “Very High,” “High,” or “Medium.” §§ 16VAC25-220-50(C)(2), 16VAC25-220-60(C)(2), 16VAC25-220-80(C).

Lastly, § 16VAC25-220-90 provides several protections to employees:

A. No person shall discharge or in any way discriminate against an employee because the employee has exercised rights under the safety and health provisions of this standard Title

40.1 of the Code of Virginia, and implementing regulations under §16VAC25-60-110 for themselves or others.

B. No person shall discharge or in any way discriminate against an employee who voluntarily provides and wears their own personal protective equipment, including but not limited to a respirator, face shield, or gloves, or face covering if such equipment is not provided by the employer, provided that the PPE does not create a greater hazard to the employee, or create a serious hazard for other employees.

C. No person shall discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media

D. Nothing in this standard shall limit an employee from refusing to do work or enter a location they feel is unsafe. See §16VAC25-60-110 for requirements concerning discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.

The above requirements are effective immediately “upon publication in a newspaper of general circulation, published in the City of Richmond, Virginia.” § 16VAC25-220-20. According to the Virginia Department of Labor and Industry, publication is expected to occur the week of July 27, 2020. This Standard will then expire within six months of the effective date, “upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.” § 16VAC25-220-20.

This is provided for general information purposes only and is not intended to be legal advice. Please contact your attorney for additional information on this subject matter.