Virginia Issues Permanent Standard for Prevention of SARS-CoV-2 (Covid-19)

Virginia has implemented a Permanent Safety and Health Standard requiring employers to control, prevent, and mitigate the spread of Covid-19, replacing the emergency temporary standard (ETS). The new standard is effective January 27, 2021, although some provisions, as training, kick-in 60-days later. So, what does this mean for employers?

The ETS requirements are for the most part carried over into the Permanent Standard with some important changes that employers need to be aware, including:

• Defines “Face Coverings” as two or more layers of washable, breathable fabric that fits snugly covering the nose and mouth, does not have exhalation valves or vents, and includes neck gaiters. Employees may not use a face shield as a substitute for a face covering, however face shields can be worn only if a face covering cannot be worn due to a medical condition.

• Virginia Department of Health to instead report “outbreaks” of two or more cases of their employer’s employees present at the workplace within a 14-day period.

• Clarifies that an employer must notify the Virginia Department of Labor and Industry within 24 hours of the discovery of a single grouping of three or more of the employer’s employees present at the workplace within a 14-day period who test positive for COVID-19 during that time.

• 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, to be consistent with CDC requirements.

• Eliminates test-based return-to-work requirement, leaving employers with a time-based requirement only reducing employer flexibility.

• Removes the ANSI/ASHARE requirements for air handling systems under the employer’s control for jobs classified as “very high,” “high,” or “medium”, but recommends other criteria including increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters (MERV13), and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

• Eliminates 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; however, it does provide for other criteria such as ventilation.

• VOSH will not bring an enforcement action against employers making good faith efforts to secure PPE in short supply.

• The Permanent Standard cannot be used to enforce a Governor’s executive orders.

The Permanent Standard retains the ETS’s “safe harbor” provision if an employer’s actions comport with a CDC recommendation, whether mandatory or non-mandatory, to mitigate COVID-19-related hazards, if such recommendation provides equivalent or greater protection than that provided by the Permanent Standard.

Some things that remain problematic include no prohibition of employees from going to work after close contact with a person testing positive for Covid-19; lack of flexibility if CDC guidance lessens obligations on employers; and the ability of employees to raise “reasonable concerns” regarding an employer’s Covid-19 infection control to multiple organizations including the public through social and other media in contravention of employer’s policies.

The bottom line is that the changes are helpful, except for the removal of the return-to-work testing option, but based on the comments provided by interested parties could have gone further. Whether you like it or not, the Permanent Standard requires Virginia employers to revise their existing infection disease prevention and response plans to incorporate the changes.