By: Michael T. Cimino and
On Wednesday July 15, 2020, Virginia became the first state to announce that it will be implementing emergency temporary standards (“ETS”) for workplace safety in response to the coronavirus pandemic. Virginia Governor Ralph Northam announced the new regulations, which are the first workplace safety enforcement regulations specifically targeted to the COVID-19 response. The federal Occupational Safety and Health Administration (“OSHA”) has recently argued that existing regulations, including OSHA’s “general duty clause” provide sufficient enforcement tools for federal agencies to address COVID-19 safety in workplaces.
The new regulation, although announced today, is still being finalized and is expected to be released during the week of July 27, 2020. Upon release, the finalized rules will be available on the Virginia Department of Labor and Industry website.
Some of the newly adopted standards include:
- A mandate that all employees, and other workers onsite be notified within 24 hours if a coworker, or other worker at the same worksite (subcontractors, temporary employee, etc.) tests positive for the virus.
- All employers, regardless of industry, are required to mandate social distancing measures and comply with the state masking requirement already in place.
- Employers will be required to provide frequent access to hand washing or hand sanitizer, and regularly clean high-contact surfaces.
- Employers must adhere to prescribed return-to-work protocols for employees with suspected or confirmed cases of COVID-19:
- A symptom-based approach that requires a symptomatic employee remain home until:
- The employee has had 3 days with no fever without fever reducing medication and reduction in respiratory symptoms, AND
- At least ten days has passed since the onset of the first symptoms.
- A testing-based approach which requires that an employee remain home until:
- They have no fever without medication, and a reduction in respiratory symptoms, AND
- The employee has undergone two COVID-19 tests, at least 24hrs apart which have both been negative for the virus.
- A time-based approach for employees who have tested positive for COVID-19 but remain asymptomatic requires that employees remain home until:
- They have remained symptom free for at least 10 days since the positive test.
- If symptoms occur the employee must follow one of the other two protocols.
- A symptom-based approach that requires a symptomatic employee remain home until:
- Employers are prohibited from taking any discriminatory or retaliatory action against employees who communicate concerns related to COVID-19 safety with management, coworkers, government agencies, or via social or traditional media.
- Employers could face penalties of up to $130,000 for failure to comply with the new standards.
According to the announcement, Virginia’s ETS rules will be in effect for six months initially, but they may be made permanent through the process defined in state law.
Employers will have 60 days from the effective date of the emergency temporary standard to develop and train employees on their infectious disease preparedness and response plan.
While Virginia is the first state to issue an ETS, it will not be the last. Oregon is already promising similar rules and other states may likely follow suit. Jackson Kelly’s Workplace Safety and Health and Employment attorneys can help businesses prepare for, and comply with, the new requirements.