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On Jan. 12, 2021, the Virginia Safety and Health Codes Board (Board) voted 9-4 to approve a permanent safety and health standard (Permanent Standard) requiring employers to take steps to protect workers from Coronavirus Disease (COVID-19).

As discussed in a previous GT Alert, on July 15, 2020, the Board approved temporary workplace safety regulations related to COVID-19 (Temporary Standard), making Virginia the first state in the country to do so. The Temporary Standard expires on Jan. 26, 2021, and though the effective date of the Permanent Standard is not yet known, it should be after Jan. 26. Some of the provisions of the Permanent Standard, including the training requirements, will not take effect until 60 days after the effective date.

The Permanent Standard largely mirrors the Temporary Standard and continues to require employers to, among other things:

  • Group jobs into categories of high, medium, and low exposure risk;
  • Inform employees of the methods of self-monitoring for signs and symptoms of COVID-19;
  • Develop and implement policies for employees with symptoms consistent with COVID-19;
  • Provide notice to specific individuals who have had contact with infected employees;
  • Develop and implement policies and procedures for employees to return to work after testing positive for COVID-19;
  • Create a workplace infection protection program if they have job tasks with risks classified as “very high” or “high,” and/or if they have 11 or more employees with job tasks classified as “medium.”
  • Train workers on COVID-19 and its infection protection program if the employer has job tasks with risks classified as “very high” or “high”; and
  • Not discriminate or retaliate against an employee who wears their own personal protective equipment or raises a reasonable concern about infection control related to COVID-19.

Also, the Permanent Standard retains the Temporary Standard’s “safe harbor” provision. Accordingly, an employer’s actions will be considered in compliance with the Permanent Standard if they comport with a CDC recommendation, whether mandatory or non-mandatory, to mitigate COVID-19-related hazards or job tasks addressed by the Permanent Standard, if such recommendation provides equivalent or greater protection than that provided by the Permanent Standard. That said, the Permanent Standard explains that the Virginia Occupational Safety and Health Administration (VOSHA) will consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with CDC guidelines.

Note: The Permanent Standard contains some important changes of which employers should be aware including, among other things:

  • Using the phrase “close contact” (defined as being within six feet of someone with COVID-19 for a total of 15 minutes or more in a day) rather than just “six feet” when discussing COVID-19 exposure.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees in the workplace within a 14-day period.
  • Changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day, to be consistent with CDC requirements.
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.
  • Explaining that VOSHA will not bring an enforcement action against employers making good faith efforts to secure personal protective equipment in short supply.

The Permanent Standard also requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control including increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

The Permanent Standard does not address COVID-19 vaccines or whether employers will be required to mandate their employees receive a COVID-19 vaccine.

Although the Permanent Standard is similar to the Temporary Standard, employers in Virginia should take the opportunity to review, and if necessary, revise their existing policies and procedures regarding COVID-19 to ensure compliance with the Permanent Standard. Virginia employers that fail to comply with the Permanent19 Standard are subject to fines up to $12,726 for serious violations and $127,254 for willful violations.

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Photo of Michael Taylor ‡ Michael Taylor ‡

Michael Taylor is Chair of the Greenberg Traurig OSHA Practice group. Michael focuses his nationwide practice exclusively on representing employers regarding workplace safety and health matters. Over the last two decades, Michael has represented hundreds of employers during federal and state workplace safety…

Michael Taylor is Chair of the Greenberg Traurig OSHA Practice group. Michael focuses his nationwide practice exclusively on representing employers regarding workplace safety and health matters. Over the last two decades, Michael has represented hundreds of employers during federal and state workplace safety and health litigation, many of which involved a significant injury, fatality, fire, explosion, or catastrophic release of a highly hazardous substance in the workplace. Michael also provides federal and state workplace safety and health compliance counseling, inspection counseling, whistleblower representation, and due diligence reviews for clients. Michael also represents employers regarding Chemical Safety Board investigations in response to a significant fire, explosion, or catastrophic release of a highly hazardous substance in the workplace. Michael has significant experience in the oil, gas, electric utility, grain, construction, and chemical manufacturing industries.

Michael previously served as General Counsel to the federal Occupational Safety and Health Review Commission, the agency in charge of adjudicating workplace safety and health disputes between federal OSHA and the regulated community.

Michael is the Founder and Host of the Greenberg Traurig Workplace Safety Review Podcast, where he interviews influential environmental, health, and safety professionals across the country regarding timely and important topics in the environmental, health and safety world. Recent guests have included Douglas Parker, Assistant Secretary of Labor for Occupational Safety and Health in the Biden Administration; Deborah Harris, Chief of the U.S. Department of Justice Environmental Crimes Section; John Howard, Director of NIOSH and Administrator of the World Trade Center Health Program in the U.S. Department of Health and Human Service; Nadine Mancini, General Counsel of the federal Occupational Safety and Health Review Commission; and Richard Fairfax, former Deputy Assistant Secretary of Labor for federal OSHA.

In 2020, Michael was recognized as a “Labor & Employment Star” in the Benchmark Litigation Labor & Employment rankings, and, in 2013, EHS Today named Michael as one of the Top 50 People Who Most Influenced Environmental, Health, and Safety.

 Admitted in the District of Columbia. Not admitted in Virginia. Practice in Virginia limited to federal OSHA and proceedings before federal agencies.

Photo of Adam Roseman Adam Roseman

Adam Roseman focuses his practice on federal and state labor and employment investigations, counseling and litigation arising under Title VII, the Fair Labor Standards Act, whistleblower retaliation under Sarbanes-Oxley and Dodd-Frank, the Occupational Safety and Health Act, and restrictive covenants. Adam also has

Adam Roseman focuses his practice on federal and state labor and employment investigations, counseling and litigation arising under Title VII, the Fair Labor Standards Act, whistleblower retaliation under Sarbanes-Oxley and Dodd-Frank, the Occupational Safety and Health Act, and restrictive covenants. Adam also has experience on white collar matters, representing clients during internal investigations and in civil and criminal government enforcement actions including the defense of qui tam/False Claims Act complaints.