On July 27, Virginia became the first state in the United States to implement a COVID-19 workplace safety rule. The new rules require employers covered by the Virginia Occupational Safety and Health (VOSH) program to immediately comply with guidance from the federal Centers for Disease Control and Prevention and state-issued regulations.
The standard applies to most Virginia workplaces, including retail employees, office workers, and persons employed in the agricultural, manufacturing, and construction industries. The standard is an “emergency temporary” rule and will remain in effect for six months unless a permanent standard is implemented sooner or the Governor declares an end to the state of emergency.
The standard is based on guidance from OSHA and the CDC. If the employer can show that it was in “actual” compliance with CDC guidelines and those standards are in excess of Virginia’s standard, the employer will be deemed to be in compliance. Where Virginia imposes a higher standard than the CDC, evidence of compliance with CDC guidelines is a defense which may mitigate any penalty.
The requirements imposed by the new rules are detailed and task-specific. Tasks are classified in categories ranging from “lower” to “very high” risk. The higher the risk, the more onerous the employer’s requirements are.
Under the new rules, employers are required to, among other things:
- ensure that employees suspected or confirmed to have COVID-19 not return to the workplace until cleared to do so;
- establish a system for employers to receive reports of positive COVID-19 tests from employees and contractors;
- establish a system for notifying employees who may have been exposed to someone who tested positive for COVID-19;
- ensure proper social distancing is maintained through signage and limiting occupancy of common spaces;
- ensure that proper cleaning and sanitation protocols are in place in areas such as doors, counters, common areas, shared workspaces and vehicles; and
- for “medium” and higher risk tasks, ensure that proper PPE and ventilation are available.
Where employees are required to perform medium or higher-risk tasks, employers have 30 days to train workers to protect themselves from COVID-19 and 60 days to implement an infectious disease preparedness and response plan. Penalties include fines of more than $130,000 for repeat and willful violations.