Virginia Drafts Workplace COVID-19 Guide
Virginia Drafts Workplace COVID-19 Guide

Virginia Drafts Workplace COVID-19 Guide

Virginia has compiled a workplace guide in case it beats down its first-in-nation COVID-19 standard.

On his first day in office, Gov. Glenn Younkin declared Virginia “open for business” and issued Executive Order 6: “Renew job growth by removing burdensome rules from Virginia’s Business Community. “The order instructed the Virginia Safety and Health Codes Board to convene an emergency meeting to determine whether the COVID-19 standard was still necessary.

The board proposed to repeal the standard and opened a 30-day deadline for public comment, which ends on March 19th. The board plans to meet on March 21 to take a final vote on the proposal to repeal the standard.

State Plan States

The Occupational Safety and Health Act of 1970 authorizes Virginia and 26 other “State Plan” states to adopt state-specific standards and operate their own occupational safety and health program under a matching grant with the Occupational Safety and Health Administration (OSHA). California, Michiganand Oregon followed suit with their own state-based standards.

Virginia Standard

On July 15, 2020, the board (which included author Courtney Malveaux) made Virginia the first state in the nation to issue a Temporary emergency standard to handle COVID-19 in workplaces, and that made the standard permanent on January 27, 2021.

In addition to guidelines for the Centers for Disease Control and Prevention (CDC) and OSHA, the standard contains provisions that require employers to:

  • Provide both wash stations and hand sanitizer whenever possible;

  • Notify the Virginia Department of Health and the Virginia Department of Labor and Industry of outbreaks of two or more positive COVID-19 tests;

  • Assess hazard levels for all job assignments;

  • Offer COVID-19 training to employees;

  • Prepare contingency and response plans for infectious diseases;

  • Send or present agency-prepared COVID-19 information to all employees;

  • Shield employees before entering work;

  • Establish requirements for employees with COVID-19 positive tests and symptoms before returning to work;

  • Require social distancing or, when social distancing is not possible, respiratory protection;

  • Clean and disinfect commonly used areas and equipment; and

  • Maintain air handling systems in accordance with the manufacturer’s instructions and the American National Standards Institute and the American Society of Heating, Refrigerating and Air-Conditioning Engineers standards.

The standard protects employees who raise reasonable concerns about infection control to print, online, social or other media. It also requires building and construction owners to report positive COVID-19 tests to employer tenants. In a recent iteration, the standard also includes a safe harbor provision for employers who follow the CDC guidelines.

If the board votes to lift the standard, Virginia Occupational Safety and Health (VOSH), an OSHA-approved program in the Virginia Department of Labor and Industry, has taken the rare step of drafting state-based guidance. In most cases, VOSH refers employers and others to OSHA guidance instead of developing its own.

Draft guidance

The draft guidance makes clear the policy of the Agency and the Commonwealth to “support and respect the rights of individuals to choose whether or not to wear masks in non-federal mandated environments, unless required by law or as medically appropriate in cases of acute illness or in certain health settings. ” It also makes clear that VOSH and the Commonwealth “will not allow or tolerate unlawful discrimination based on wearing or not wearing masks, and people should not be fired or fired for not wearing a mask” in most cases.

The draft guidance states that employers should encourage workers to mitigate COVID-19 infection by:

  • Facilitation of employee vaccinations;

  • Encourage workers with COVID-19 symptoms to stay home from work and seek medical advice on testing and treatment;

  • Requires workers infected with COVID-19 to stay at home;

  • Providing workers with face masks or surgical masks;

  • Promoting personal hygiene, including frequent hand washing;

  • Teaching employees about employers’ COVID-19 policies in languages ​​that employees understand;

  • Operation and maintenance of ventilation systems according to the manufacturer’s specifications;

  • Detection and reporting of work-related COVID-19 infections when required by long-standing OSHA registration standards; and

  • Complies with other applicable VOSH standards, including those governing respiratory protection, personal protective equipment, sanitation, blood-borne pathogens, and Virginia’s general duty clause, which requires employers to provide employment and a place of employment that is free of recognized hazards.

The draft document does not specify whether VOSH will enforce Virginia’s general duty clause if employers fail to comply with generally recognized hazards related to COVID-19, including non-compliance with CDC guidance. Nor does it clarify whether VOSH will continue its two-year practice of initiating Rapid Response Inquiries, in which the agency asks employers to respond to complaints from employees or others about COVID-19 hazards in the workplace.

Jackson Lewis PC © 2022National Law Review, Volume XII, Number 76

Leave a Reply

Your email address will not be published.