Yesterday, Virginia approved temporary emergency workplace safety standards related to COVID-19, making it the first state in the nation to do so. While final language has yet to be approved, the standards are expected to go into effect in late July and will remain in effect for six months unless extended pursuant to state law. A current draft of the regulations is available here.
In large measure, the regulations codify and make mandatory certain safety standards that experts have been recommending for some time. For example, if an employer has not already done so, the regulations require employers to develop a number of workplace policies, including:
- how employees should report to their employer when they are experiencing symptoms of COVID-19;
- when to allow a known or suspected COVID-19-positive employee to return to work;
- mandatory social distancing policies and/or requiring the use of personal protective equipment where social distancing is not possible; and
- disinfection of communal spaces.
The regulations classify jobs by risk level and obligate employers to identify the risk level for a given employee or class of employees. All employers will need to conduct a COVID-19 disease workplace hazard assessment to determine the risk level of their employees, and employers need to certify in writing that it has been completed. The risk level dictates what steps the employer needs to take related to preventing the spread of COVID-19. Some high and medium-risk employers will need to develop and implement a written Infectious Disease Preparedness and Response Plan. High-risk employers also will need to train employees on certain COVID-19-related protocols. The Virginia Department of Labor and Industry has said it will be publishing infectious disease preparedness response plan templates and training guidance on its website.
An important and relatively novel development concerns notifying employees of positive COVID-19 cases. When effective, the regulations will require employers to notify all employees within 24 hours if the employer is notified of a positive COVID-19 test by an employee, a subcontractor employee, a contract employee, a temporary employee, or any person who was present at the place of employment in the 14 days prior to the positive test.
Because this regulation is being adopted as part of the Virginia Occupational Safety and Health codes, failure to abide by these regulations may subject employers to an increased risk of workers' compensation claims related to COVID-19.
Employers with questions about these regulations or the impact on their business should contact counsel.
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