Virginia’s COVID-19 Permanent Standard

In July of 2020, the Virginia Department of Labor and Industry (“DOLI”) enacted an Emergency Temporary Standard (“ETS”) setting forth workplace safety standards relating to the COVID-19 pandemic. Virginia has now enacted a Final Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19 (the “Permanent Standard”). The 58-page Permanent Standard, set forth in Section 16VAC25-220 of the Virginia Administrative Code, is effective as of January 27, 2021. The Permanent Standard applies to all employers in the Commonwealth, and supersedes the ETS.

The Permanent Standard is based in large part on the ETS, and mandates appropriate personal protective equipment, sanitation, social distancing, record keeping, training, and hazard communications in Virginia’s workplaces. It requires employers to mandate social distancing measures and face coverings for employees in customer-facing positions and when social distancing is not possible, to provide frequent access to hand washing or hand sanitizer, and to regularly clean high-contact surfaces. Employers are required to exclude employees from work who are known or suspected to be infected by COVID-19, timely notify employees and others when a worker known to be infected by COVID-19 was at the workplace, and train employees on COVID-19 safety issues.

In particular, the Permanent Standard continues the requirement in the ETS that employers assess the exposure risk level to COVID-19 of the job tasks of each employee, and classify the risk level as “very high,” “high,” “medium,” or “lower.” Employers are subject to different requirements depending on the exposure risk levels their employees face. Employers with job tasks classified as “medium” or higher are required to implement a written infectious disease plan. Employers with hazards or job tasks classified as “very high” or “high” are subject to additional safety requirements as well.

There are some key differences between the ETS and the Permanent Standard. Under the Permanent Standard:

• Employers do not have to fear enforcement actions for failing to provide Personal Protective Equipment (PPE) when they are making good-faith efforts to secure PPE that is in short supply.
• Employers no longer have to report every positive COVID-19 case to the Virginia Department of Health (VDH). An employer only need report “outbreaks,” defined as two or more cases within a 14-day period.
  • After an initial report of outbreak of two or more cases, an employer is required to continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed.
  • After the outbreak is closed, the normal standard of an outbreak (two or more cases) applies before the employer is required to report to the VDH again.
  • Employers must report to DOLI as well if they have three or more positive cases within 14 days. All reporting to VDH and DOLI can be done through an online form.
• For employees known or suspected to be infected, employers must comply with a time-based return-to-work requirement. The test-based approach has been removed.
  • Consistent with CDC guidance, employees may return to work after 10 days, with only onesymptom-free day, instead of the previous requirement of 10 days with three symptom-free days.
    • Employees can return to work when they have been fever-free for 24 hours without fever-reducing medications, their respiratory symptoms have improved, and at least 10 days have passed since their symptoms first appeared.
  • Critical infrastructure workers may return to work earlier consistent with applicable CDC or VDH guidance.
• Employers have alternative options for complying with respiratory standards when multiple employees travel in work vehicles together, due to shortages of N-95 and other respirators.

The Permanent Standard also clarified a few items:

• Face coverings must be worn over the nose and mouth and fit snugly under the chin. They cannot have exhalation valves or vents.
• A face shield generally does not qualify as a “face covering.”
• Face coverings are required when employees who are solely exposed to lower risk hazards or job tasks have brief contact with others closer than six feet apart, such as passing another person in a hallway that does not allow physical distancing of six feet.
• Employers with hazards or job tasks classified in the “very high,” “high,” or “medium” risk categories must implement enhanced ventilation controls for air-handling systems, such as increasing airflow to occupied spaces (provided that it does not create a greater hazard), increasing air filtration, and using natural ventilation in ground transportation settings.

Although the Permanent Standard does not tie its requirements directly to the CDC’s guidance, it provides that compliance with a specific CDC guideline may be considered compliance with the Standard. The Permanent Standard also provides no guidance for employers whose employees have received a COVID-19 vaccine.

The Permanent Standard will remain effective throughout the pandemic. Within 14 days of the expiration of Governor Northam’s COVID-19 emergency declaration, the Board responsible for developing the rules will reconvene to determine whether the standard should remain in effect.

Employers must update their policies and practices to comply with the Permanent Standard, and inform employees of any changes. As you know, employers were required to provide training to employees consistent with the requirements of the ETS. While employers are not required to retrain employees, employers must ensure that all employees have been trained and are aware of any new changes. Employees are required to keep certification records of the training received by employees. The training requirements take effect March 26, 2021.

For further information, the Virginia Department of Labor and Industry (DOLI) maintains a useful Education and Training materials page, available at https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.

Please contact us if you have questions or if we can assist you with your compliance obligations under the Permanent Standard.