Wednesday, Sep 22, 2021

Virginia Employers Need to Revisit Their COVID-19 Workplace Protocols with the Recent Amendment to Virginia’s Permanent Standard

The Safety and Health Code Board of the Virginia Department of Labor and Industry (DOLI) voted and approved updates to the previous January version of the permanent standard. The amendments became effective as of September 8, 2021.  The new standard, found here, keeps many of the original standard’s requirements, however, it contains several new requirements in an effort to match the more recent guidance from the Centers for Disease Control and Prevention (CDC) regarding mask use and other recommendations such as quarantining.

The new standard does away with defining levels of risk for all but “higher-risk” workplaces, and now bases many of its requirements on the level of community transmission of the SARS-CoV-2 virus, which is in line with the recommendations by the CDC.  Since most of Virginia is currently in a substantial or high status of virus transmission, these requirements must be noted by employers.

Some of the changes that employers should now carefully review based upon the recent amendments include the following:

16VAC25-220-40:  Mandatory requirements for all employers were added/modified.

The updated standard now requires all covered employers to implement a COVID-19 policy, covering areas such as (i) workplace safety practices and procedures, (ii) mandatory reporting, (iii) return to work procedures after a COVID-19 exposure or diagnosis, (iv) practices for workplace visitors, and (iv) a method to receive anonymous complaints of violations.

The updated standard changes many of the applicable workplace safety practices and procedures to differentiate between fully vaccinated employees and employees who are unvaccinated or otherwise at risk. Including updated language regarding required face coverings for employees who are not fully vaccinated, as well as employees who are fully vaccinated but are currently in areas of substantial or high community transmission, and employees who are otherwise at-risk, with certain exceptions and accommodation requirements noted in 16 VAC25-220-40(G).

The reporting requirement to the Virginia Department of Health (VDH) within 24 hours of becoming aware of any confirmed COVID-19 cases at the worksite remains for all employers when there are two or more cases within a 14-day period, and that now matches the reporting requirements to DOLI.

The amended standard has updated the return to work requirements, and requires those with a known exposure to someone with COVID-19 to follow testing and quarantine guidance from the VDH. The return to work requirements for those employees suspected to have COVID-19 (even if vaccinated) include a return to work only after a negative PCR test (paid for by the employer), or per the advice of a healthcare professional or VDH, or consistent with CDC guidance. Those employees known to have COVID-19 may only return to work after guidance from a healthcare professional or VDH, or consistent with CDC guidance.

16VAC25-220-50: Requirements for healthcare services or healthcare support services were added.

Language was added to address the adoption on June 29, 2021 of the federal OSHA COVID-19 Emergency Temporary Standard (OSHA ETS) by the Virginia Safety and Health Codes Board applicable to all settings where any employee provides healthcare services or healthcare support services. The OSHA ETS became effective in Virginia on August 2, 2021.

When the OSHA ETS is no longer in force, 16VAC25-220-50 will apply to employers in healthcare services and healthcare support services.

16VAC25-220-60: Requirements for higher-risk workplaces were added.

Higher-risk employers include but are not limited to, manufacturing, meat and poultry processing, high-volume retain and grocery, transit, seafood processing, correctional facilities, jails, detention centers, and juvenile detention centers.

 16VAC25-220-70: Requirements for infectious disease response plan modified.

The updated standard requires employers with higher-risk workplaces and 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan covering certain specific practices and to train employees on such plan. The deadline to implement such a written plan is October 8, 2021.

16VAC25-220-80: Requirements for training modified.

The training deadlines for those covered by 16VAC25-220-50, and 60 are November 7, 2021.

Virginia employers who need help updating their protocols to comply with Virginia’s recent changes to the permanent standard should contact shareholder and attorney Wendy Alexander at 703.680.4664 x5117.