As reported in earlier newsletters, last summer, Virginia became the first state in the nation to issue an Emergency Temporary Standard (ETS) which addressed COVID-19 in the workplace. Because the ETS was set to expire in January of this year, the Virginia Safety and Health Codes Board, that falls under the state Department of Labor and Industry (DOLI), enacted a permanent standard on January 13, 2021, which nearly tracked the ETS. As vaccines became more available in the spring and the state’s vaccination rate rose, Governor Northam’s mask mandates and his COVID-19-related state of emergency declaration expired, thus leaving many to wonder about the fate of the permanent standard. In a somewhat surprising move, the Governor recommended that the DOLI re-examine the permanent standard. The Safety and Health Codes Board met and on August 26, voted to adopt a number of amendments to the permanent standard. Governor Northam then proposed an additional amendment which was also adopted by the Board; thus, resulting in a new permanent standard which became effective on September 8, 2021. This permanent standard contains a number of new, or substantially updated, requirements which are worth noting.
First, the prior exposure risk level determinations of very high, high, medium and lower have been removed. In their place, there are specific requirements applicable to all employers. That said, the new permanent standard imposes expanded rules for healthcare or healthcare support services and introduces the concept of “higher-risk workplaces.” These higher-risk workplaces would include employers with employees who are not fully vaccinated or employees who are at risk because the workplace is in a location with substantial or high community transmission. These requirements are very similar to January permanent standard’s very high or high exposure risk levels.
Second, employers must conduct a workplace safety hazard assessment of each job position and shall inform employees of how to self-monitor for symptoms.
Third, employers must provide and require face coverings or masks that cover the nose and mouth for those employees who are not fully vaccinated, those employees who may be fully vaccinated but work in areas designated by the CDC as being of substantial or high community transmission, as well as employees who are otherwise at-risk.
Fourth, employers can require employees to disclose their vaccination status. Employers can rely on the employee’s representation of their status or require them to provide proof of vaccination status.
Fifth, employers must report two or more confirmed COVID-19 cases that occur in the same workplace within a 14-day period to the Virginia Department of Health (VDH). This should be done through the VDH’s website within 24 hours of discovery of the second diagnosed case and there is a duty to supplement the report until the breakout ends.
Sixth, healthcare-related employers and those in high-risk industries with 11 or more unvaccinated employees must prepare a written infectious disease preparedness and response plan by October 8, 2021 and train employees on that plan by November 7, 2021.
Finally, within 24 hours of learning that an employee has tested positive for COVID-19, employers must inform anyone who was in direct contact with the positive individual that they may have been exposed. Employers must also notify the building or facility owner of the positive test, but employers are not required to undertake contact tracing.
