Virginia OSHA Issues Third Iteration of its Emergency COVID-19 Regulation

On August 26, 2021, the Virginia Safety and Health Codes Board adopted revised amendments to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (the Final Permanent Standard).  Governor Ralph Northam then proposed an additional amendment, which the Board adopted as well.  As a result, the Final Permanent Standard, as amended, became effective September 8, 2021. This third version of Virginia’s emergency COVID-19 regulation includes some notable changes.

Key Takeaways

  • Exposure Risk Levels Removed. Virginia has removed the exposure risk level determinations of very high, high, medium, and lower from the Final Permanent Standard. In place of exposure risk level, Virginia has enacted specific requirements applicable to all employers along with more stringent requirements for health care or health care support services and “higher-risk workplaces.” The addition of health care and health care support services to the Standard is intended to impose more stringent requirements on these employers in the event the federal COVID-19 Emergency Temporary Standard is stayed, invalidated, or otherwise revoked or repealed by OSHA. The requirements are largely identical to those that were in place for employers with very high or high exposure risk levels, as defined in the earlier version of the Final Permanent Standard.
  • Higher-Risk Workplaces. The Final Permanent Standard requires employers with high-risk workplaces to help slow the transmission of, and protect workers from, COVID-19.  The Final Permanent Standard defines higher-risk workplaces to include those employers with employees who are not fully vaccinated; employees whose workplace is in a location with substantial or high community transmission, regardless of vaccination status; and otherwise at-risk employees in workplaces where there is heightened risk due to factors such as where employees who are not fully vaccinated or are otherwise at-risk:
    • are working close to one another;
    • often have prolonged closeness to coworkers or potential frequent contact with members of the public;
    • work in enclosed indoor spaces with inadequate ventilation where other coworkers or members of the public are present;
    • may be exposed to the virus through respiratory droplets or aerosols in the air; and
    • engage in a common practice of sharing employer-provided transportation and communal housing or living quarters.

Some examples of higher-risk workplaces include, but are not limited to, manufacturing, meat and poultry processing, high-volume retail and grocery, transit, seafood processing, correctional facilities, jails, detention centers, and juvenile detention centers.

  • Verifying Employee Vaccination Status. Although the Final Permanent Standard does not require employees to be vaccinated, it imposes additional requirements for employees who have not been fully vaccinated.  As such, an employer should determine whether its workforce has been fully vaccinated.  When verifying an employee’s vaccination status, the Final Permanent Standard permits an employer to rely on an employee’s representation of being fully vaccinated, without providing proof of vaccination. That said, an employer is not precluded from requiring proof of vaccination.
  • Face Coverings. Subject to certain exceptions, employers must provide and require unvaccinated employees, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE.  In addition, when employees must share a work vehicle or other transportation, unvaccinated employees must be provided with, and wear, a face covering or respiratory protection, such as an N95 filtering face piece respirator, and fully vaccinated employees in areas of substantial or high community transmission must be provided with, and wear, a face covering.
  • Infectious Disease Preparedness and Response Plan. Previously, the Final Permanent Standard only required employers with a very high or high exposure risk level, or that had 11 or more employees with a medium exposure risk level to have an infectious disease preparedness and response plan. With these amendments, any health care or health care support employer as well as any employers with higher-risk workplaces with 11 or more employees must have an infectious disease preparedness and response plan. When counting the employees, the employer may exclude fully vaccinated employees.
  • Training. Previously, Virginia employers were only required to provide additional training to employees in very high, high, or medium exposure settings. The Final Permanent Standard now requires training on the hazards and characteristics of the SARS-CoV-2 virus and COVID-19 disease for employees working in health care and health care support settings, and higher-risk workplaces. Fully vaccinated employees need only be provided with written information on certain specific topics, while unvaccinated employees are subject to enhanced training and topics.
  • Reporting. The Final Permanent Standard has been revised to align the reporting requirements to Virginia Department of Labor and Industry (DOLI) to match the reporting requirements to the Virginia Department of Health (VDH). Under the amendments, employers must report to both DOLI and VDH when it has 2 or more confirmed cases of COVID-19 among its own employees present at the place of employment within a 14-day period, within 24 hours of the discovery.

What is Next?

The majority of the amendments are effective as of September 8, 2021, although the requirements for an infectious disease preparedness and response plan become operative on October 8, 2021 and the training requirements are not effective until November 7, 2021. Regardless, employers should take steps immediately to comply with these requirements. Employers should keep in mind that federal OSHA will be issuing its own emergency regulations requiring employers with 100 or more employees to mandate vaccinations or implement a weekly testing program for COVID-19. It is not yet clear how the Virginia Occupational Safety and Health will incorporate those pending regulations into its Final Permanent Standard, and it is likely that further amendments are on the horizon.

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.