On January 27, 2021, the Commonwealth of Virginia became the first state in the country to adopt permanent COVID-19 workplace safety and health standards. As we noted in a previous article, Virginia adopted an emergency temporary workplace safety and health standard in July 2020 to aid in preventing the spread of the pandemic. With Governor Ralph Northam’s approval on January 27, 2021, the permanent standard superseded the July 2020 emergency temporary standard.

The permanent standard applies to all employers in the Commonwealth of Virginia that fall within Virginia Occupational Safety and Health’s (“VOSH”) jurisdiction. Accordingly, most private employers in Virginia and employees of the Commonwealth and local governments must comply.  Private and public institutions of higher education are deemed to be in compliance if they have established plans certified by the State Council of Higher Education in Virginia and are acting in compliance with those plans, provided that the certified plans ensure an equivalent or greater level of protection for employees than the VOSH standard.

Like the emergency standard, the permanent standard classifies occupations based on “exposure risk level” and requires adherence to various practices based on the risk level of a given occupation. An occupation can have a “very high,” “high,” “medium,” and “lower” exposure risk level based on the risk of transmission. In determining exposure risk levels, employers must consider: (1) the job tasked performed; (2) whether the workplace is indoors or outdoors; (3) the presence of the virus in the workplace; (4) the presences of a person known or suspected to have the virus; (5) the number of employees in relations to the size of the workplace; (6) working distance between employees; and (7) the frequency and duration of close contact employees have with co-workers and other people.

The permanent standard further requires employers to ensure that employees practice social distancing in the workplace by making announcements, posting signs, decreasing the density of employees, and adhering to Virginia’s occupancy limits. Employers must also provide employees access to hand sanitizer and cleaning supplies, develop procedures for sanitation, and train employees on ways to prevent the spread of COVID-19. If employees must share a vehicle for work, they must wear the appropriate personal protective equipment (“PPE”).

While the permanent standard resembles the July temporary standard, the standards differ in important ways. Under the permanent standard, employers must report to the Virginia Department of health if two or more employees test positive for COVID-19 within a 14-day period instead of reporting each positive COVID-19 test as required by the temporary standard. In addition, the permanent standard prohibits employers from requiring employees who are absent due to the pandemic to provide a negative test before returning to work. Rather, employers must use the symptom-based method based on the Centers for Disease Control and Prevention’s guidelines. The standard also regulates how face masks must be worn, sets limits on the use of face shields, and requires employers to implement ventilation controls in the workplace. Notably, the standard does not contain any provisions regarding how employers can manage employees with vaccine-related issues.

Employers in Virginia should prepare and follow comprehensive infectious disease preparedness and response plans to address the requirements in the standard. When preparing the plan, employers should consider including all required training, safe conduct in the workplace, policies and expectations regarding what employees must do if they experience symptoms and receive a positive test, and provisions for returning to work. Although the standard does not address it, employers should also consider ways to handle vaccine-related employee issues in accordance with applicable law. Please feel free to contact us for general advice regarding compliance with the standard or assistance in preparing a complaint plan.