I recently posted two articles addressing the obligations of building owners and their tenants to undertake reasonable steps to mitigate the potential for transmission of COVID-19 among employees and clients. (See: “Building Owners Must Have a Plan” and “Employer Responsibilities to Provide a Safe Workplace During COVID-19“.) On July 15, 2020, the State of Virginia’s Safety and Health Code Board adopted new rules proposed by Governor Ralph Northam making Virginia the first state in the country to pass comprehensive COVID-19 safety rules for workplaces. In doing so, Northam criticized OSHA’s decision not to adopt national standards and the inaction of the federal government overall as the basis for Virginia to act on its own to protect its workers.

COVID-19 Rules for Workplaces

The new rules went into effect the week of July 27 and mandate all employers to:

• Assess their workplaces for potential exposure to COVID-19

• Mandate face coverings for employees in customer-facing positions or when social distancing is not possible

• Sanitize common areas daily

• Provide easy and frequent access to handwashing and hand sanitizer

• Notify employees within 24 hours if a coworker tests positive for the virus

• Prevent employees known or suspected to be positive for COVID-19 from returning to work for at least three days after symptoms subside, at least ten days after they were first diagnosed, or until they test negative for the virus

Under the regulations, jobs that are deemed medium, high, or very high-risk will have more stringent requirements. For example, health care workers and first responders would be considered high or very high-risk jobs as there is a high probability an employee will come in contact with people known or suspected to be infected with the virus. Medium-risk jobs include workers in grocery stores, retail stores, restaurants, prisons, and factories. For these jobs, employers must provide training regarding the new regulations, screen employees for the virus at the beginning of each shift, and provide any necessary PPE, including any needed respiratory equipment.

Non-Compliance Penalties and More

The regulations are not mere suggestions. Scofflaws face a maximum penalty of $13,000. Those who repeatedly and willfully violate the regulations could face fines of up to $130,000. The regulations also contain whistleblower protections for those employees who complain publicly about an employer’s non-compliance or make a complaint to the Department of Labor and Industry.

Business groups in Virginia opposed the adoption of the regulations; however, implementation of the regulations may be a blessing in disguise for many businesses by not only reducing the opportunity for transmission of the virus but also serving as insulation from the inevitable liability claims by workers claiming they were infected while on the job.

Whether other states follow Virginia’s lead as companies slowly reopen while the virus continues to spread in certain areas of the country remains to be seen. In either event, it remains incumbent on building owners and tenants to undertake reasonable efforts to protect their workers and customers from the virus and themselves from liability once the inevitable occurs.

If you have any questions about this post or any related matter, please feel free to contact me at tpm