Virginia Adopts Permanent Standard in Response to COVID-19

The Virginia Safety and Health Codes Board recently voted to approve a permanent safety and health standard (“Permanent Standard”) requiring employers to take steps to prevent workers from contracting the Coronavirus (COVID-19).  The Permanent Standard provides updates to the Temporary Emergency Standards that were adopted on July 15, 2020. The Permanent Standard became effective on January 27, 2021 and will remain in place at least until any state of emergency related to COVID-19 is lifted.

The Permanent Standard maintains many controls put in place to protect employees from workplace exposure, such as wearing face coverings, social distancing, hand hygiene procedures, frequent cleaning of high contact surfaces. The Permanent Standard also also maintains the various classifications of job related exposure risks: “very high”, “high”, “medium” or “lower”.  However, some revisions have gone into the various definitions within the standards, and the requirements of the controls.  For example, the Permanent Standard now 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. The requirements include 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 contains several significant changes of which all employers should be aware including, among other things:

  • While “exposure” is still not a strictly defined term- the Permanent Standard makes it clear that “duration and frequency of exposure” considers how long and how often an employee is potentially exposed to COVID-19 disease under both acute and chronic situations.
  • 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 at the workplace within a 14-day period.
  • Eliminating the test-based return-to-work requirement and 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 (consistent with CDC guidance).
  • 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.

The Permanent Standard does not address COVID-19 vaccines, or whether employers can require 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 revise their existing policies and procedures as necessary regarding COVID-19 to ensure compliance with the Permanent Standard.

Virginia employers that fail to comply with the Permanent Standard are subject to fines up to $12,726 for serious violations and $127,254 for willful violations.

Covered employers  have until March 26, 2021 to re-train employees on the Infectious Disease Preparedness and Response Plan required under §16 VAC 25‐220‐70 (for “very high”, “high” and “medium” exposure risk level employees). Covered employers will  still need to train employees on the standard itself under §16 VAC 25‐220‐80.E.

Any employer wanting assistance with reviewing the Permanent Standard and/or revising their Office Policies/Protocols and/or Infectious Disease Preparedness and Response Plans should contact shareholder Wendy Alexander at 703-680-4664 for assistance.

Employee Spotlight

Wendy Alexander
Wendy Alexander

In high school, Wendy performed in show choirs and musical theatre, and received high marks in her civics and government classes. She decided to major in government at the University of Virginia and there, during a commercial law course, her career came into focus. Later, in a trial advocacy class in law school, Wendy realized that litigation was her calling. As she explains, trial practice can be very similar to a theatrical production—you have to be a powerful public speaker, persuasive in your story telling, and, above all, always prepared.

The daughter of a Naval Commander, Wendy is currently a master of the George Mason American Inn of Court, has been voted one of the “Legal Elite” by Virginia Business magazine in multiple categories, and is rated AV® Preeminent™ by Martindale-Hubbell. She has successfully represented numerous clients on matters involving contracts and real estate issues, and can assist with business and employment issues.

The Land Lawyers: You have successfully represented a number of clients in diverse cases. Is there a specific type of case or client you focus on?

Wendy Alexander: I have experience with a broad range of cases and issues. Typical clients include property owners, subcontractors, general contractors, lenders, small-business owners, and title companies. The types of matters I handle include lease reviews and disputes, contract reviews and disputes, construction defect cases, title defect cases, real estate matters (including condemnation landlord/tenant, easements, and adverse possession), and employment matters. But I am not always in court with my clients. Sometimes I handle transactional matters for them, or administrative matters including negotiating the regulatory world of the Department of Professional and Occupational Regulation, the State Corporation Commission, or the Virginia Employment Commission.

TLL: So you technically become your client’s closest advocate and provide counsel regarding complex legal concepts. Understanding that all of your cases are complex and confidential, what was your most complex case?

WA: Each case has its own complexities. Some of the more interesting cases I have worked on involve alleged forgeries of property deeds. Typically, I have defended lenders in these matters who, in the situation of a forgery, risk having the property (allegedly procured by their borrowers through fraud) put in the hands of the plaintiff. The lenders, through no fault of their own, risk losing the security (which was the property) for the loan. In these cases, I have always been able to file counterclaims based on equitable theories in an effort to keep my clients as protected as possible. These cases always involve expert witnesses in the form of handwriting experts, and one such case also involved a medical expert to opine on capacity to contract. It is not uncommon for these complex title issues to settle. And depending on the particulars of the individual case, I have been able to craft solutions that are equally complex, ranging from buy-outs of the loans to confirmation deeds, which reinstate the full value of a lender’s lien against a property.

TLL: You wrote a newsletter article this month about employment manuals. What other type of employment issues do you handle?

WA: We can assist with discrimination claims or other EEOC complaints (employer side), unemployment claims, non-compete and restrictive covenant interpretation and disputes, separation agreements, Fair Labor Standards Act issues, and other employer-based human resources questions.

TLL: How long have you been working for the firm?

WA: This fall marked my 15th year with Walsh Colucci.

TLL: If you have spare time, what do you like to do with it?

WA: I try to stay active and enjoy the outdoors. I am an avid sports fan both at the college level (the Virginia Cavaliers, my alma mater) and at my childrens’ myriad events.

TLL: Do you have a hero or heroine?

WA: My mother.

TLL: Favorite meal?

WA: I love to eat. My most recent notable meal was an herb-crusted salmon while visiting Bar Harbor, Maine.

TLL: If you could travel anywhere in the world, or universe, where would it be?

WA: My favorite place to visit is the Big Island of Hawaii.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

WA: It is a place where sharing ideas is encouraged, which allows for case theories and arguments to be well-honed by the time they reach a courtroom.

TLL: Thank you, Wendy!