Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On January 27, 2021, Virginia Governor Ralph Northam announced that he had approved a Final Permanent Standard (Permanent Standard) for preventing COVID-19 in the workplace, making Virginia the first state in the nation to implement a permanent COVID-19 workplace safety and health standard. The Permanent Standard, which applies to all employers in the Commonwealth, supersedes the Emergency Temporary Standard that had been in place since July 2020 but expired on January 26, 2021.
The Permanent Standard mirrors many provisions of the Emergency Temporary Standard. The Permanent Standard, like the Emergency Temporary Standard, requires employers to implement measures to help slow the transmission of, and protect workers from, COVID-19. The Permanent Standard continues the Emergency Temporary Standard’s requirement that employers assess the “exposure risk level” of hazards and job tasks at each place of employment, and classify the risk level as “very high,” “high,” “medium,” or “lower.” Employers with hazards or job tasks classified as “very high” or “high,” and even some employers with hazards or job tasks classified as “medium,” are subject to more robust requirements, such as enhanced engineering controls and development of an infectious disease and preparedness response plan.
In addition, all employers in the Commonwealth must ensure access to hand sanitizer and other cleaning supplies, implement specific sanitation and disinfection procedures, exclude employees from work who are known or suspected to be infected by COVID-19, timely notify employees and others when a worker known to be infected by COVID-19 was at the workplace, and train employees on COVID-19 safety, among other things. The Permanent Standard also directs employers to require their employees to practice social distancing and wear face coverings while at the workplace or performing work, where feasible.
Despite the similarities between the standards, the Permanent Standard contains a few important changes of which employers in the Commonwealth should be aware. For example:
- Reporting Obligation: The Permanent Standard relaxes an employer’s reporting obligation. Under the Emergency Temporary Standard, an employer had to report to the Virginia Department of Health each time it learned that an employee tested positive for COVID-19. The Permanent Standard now requires employers to report to the Virginia Department of Health when two or more of its employees test positive for COVID-19 within a 14-day period.
- Return to Work: The Permanent Standard modifies the return-to-work requirements for infected employees. The Permanent Standard removes the test-based approach, meaning that employers should not require a negative COVID-19 test as a condition of returning to work. Instead, employers must rely on a symptom-based standard that is consistent with current guidance from the Centers for Disease Control & Prevention (CDC).
- Face Coverings: The Permanent Standard clarifies that a “face covering” must be worn over the nose and mouth and fit snuggly under the chin, and cannot have exhalation valves or vents.
- Face Shields: The Permanent Standard further clarifies that a face shield does not qualify as a “face covering.” That said, if a face covering cannot be worn due to a medical condition, an employee must wear one of two types of face shields.
- Lack of PPE: An employer will not be found to be in violation of the Permanent Standard if it fails to provide required personal protective equipment (PPE) if the employer makes a good-faith effort to acquire PPE but PPE is not readily available “on commercially reasonable terms.”
- Ventilation Controls: The Permanent Standard requires employers with hazards or job tasks classified in the “very high,” “high,” or “medium” risk categories to implement enhanced ventilation controls for air-handling systems that are under their control, such as increasing airflow to occupied spaces (provided that it does not create a greater hazard), increasing air filtration, and using natural ventilation in ground transportation settings.
Many employers still have concerns about the Permanent Standard. Unlike other jurisdictions that implemented temporary COVID-19 workplace safety and health standards, Virginia’s Permanent Standard does not require employers to exclude employees from the workplace who have been in close contact with an infected individual. Moreover, even though more than 500,000 Virginians have received a COVID-19 vaccine, the Permanent Standard provides no guidance for employers whose employees have received a vaccine. In addition, while some provisions of the Permanent Standard are consistent with current CDC guidance, it does not account for the inevitable changes that the CDC will make to its guidance. Instead, it provides only a quasi “safe harbor” provision for an employer that follows CDC guidance instead of the Permanent Standard.
The Permanent Standard will remain in effect throughout the COVID-19 pandemic. While the Permanent Standard is similar to the Emergency Temporary Standard in many respects, Virginia employers should consult with counsel to determine how the Permanent Standard applies to them, what requirements they must meet, and how to implement these requirements.