Virginia’s New Coronavirus Workplace Rules

In the summer of 2020, Virginia led the nation by drafting and implementing occupational safety standards and rules that specifically dealt with the coronavirus. But these were emergency temporary standards, so on August 26, 2021, Virginia’s Safety and Health Codes Board officially adopted “16VAC25-220, VOSH Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19.” These regulations are permanent and have an effective date of September 8, 2021 (although some portions go into effect later). These carry the full force of law and cover the majority of employers in the Commonwealth of Virginia. Let’s take a look at what they require Virginia employers to do and what protections they offer employees. Virginia’s New Coronavirus Occupational Safety Rules The new workplace standards impose a slew of new requirements on employers to reduce the risk of infection and monitor the spread of the coronavirus. Many of these mandates are similar to the emergency temporary standards that came out back in 2020. However, below is a brief overview of some of the more notable requirements. Compliance Policy If they haven’t already done so, employers must enact policies that can confirm employees are following the new rules. This includes a method of anonymous reporting about violations and a method of resolving these complaints. Monitoring Coronavirus Infection Risks The employer must have a method to identify employment hazards and job tasks that can place the employees at risk of infection. Employers may accept an employee’s word that they are fully vaccinated against the coronavirus. However, employers can choose to require proof of vaccination. Handling Infected Employees If an employee tests positive or is suspected of having a coronavirus infection, an employer must have a procedure for the employee to follow concerning how to report it to the employer. Upon receiving this report, an employer may not allow this employee to come into work until the employee has been cleared to return. But employers may allow these employees to work from home or complete their job duties in isolation during this time. If an employer receives a confirmation that one of its employees is infected, the employer must do the following (within limits of current laws, such as HIPAA):

Within 24 hours of learning of the infection, notify any employee (or another employer) who may have been exposed to the infected employee. The employer must not reveal the identity of the infected employee.
Report the incidents of infection to the Virginia Depart of Health (VDH) and the Virginia Department of Labor and Industry (VDLI), but only if the employer learns of two confirmed employee infections within a 14-day period.

Clearing Employees to Return to Work If an employee has a confirmed infection, they can only return to work in accordance with applicable guidance from a VDH public health professional, a licensed health care provider or the U.S. Centers for Disease Control and Prevention (CDC). This applies regardless of whether the infected employee has been fully vaccinated against the coronavirus or not. If the employee has a possible infection, the employer must provide a free coronavirus test to the employee. If they test negative, they can immediately return to work. If they refuse to take the test, the employer must treat them as if they’re infected. The employer must also offer a reasonable accommodation if an employee has a religious or disability-related medical reason for not getting tested. Treating Unvaccinated Workers Differently If an employee does not get vaccinated, an employer must have special rules in place to mitigate the risk they impose on others concerning coronavirus infection. These rules include:

Using signs and other visual cues to promote social distancing.
Finding ways to reduce the density of workers in a particular location.
Limiting employee’s access to common areas.

Face Mask Policy Employers must require employees to wear face masks at work if they are not vaccinated, are at-risk employees (due to a medical condition) or work in an area of substantial or high community coronavirus transmission (despite being vaccinated). But employees don’t need to wear masks (even if not vaccinated) in the following situations:

The employee is alone in a room.
The employee is eating or drinking and socially distanced from others or is behind a physical barrier.
The employee is already using sufficient respiratory protection as required by another applicable occupational safety law.
When it’s critical to see the employee’s mouth.
The employee cannot wear a face mask due to a medical condition, other disability recognized by the ADA or doing so puts the employee at risk for serious injury or death (such as when the face mask could interfere with the employee’s safe use of equipment).

Where applicable, when an employee is not required to wear a face mask, the employer must require an alternative form of protection, such as a clear face shield, social distancing and/or physical barriers. Disinfection Requirements If there’s a work location that was used by an infected employee (or the employee was suspected of having an infection), the employer must clean and disinfect that location before allowing other employees to access the workspace. This requirement doesn’t apply to certain employers who are already required to clean and disinfect workspaces due to the nature of their work. Subject to certain exceptions, all common areas and frequently touched surfaces at a workplace must be cleaned and disinfected at least once per shift. High-Risk Work Environments In addition to the above rules, if a workplace is considered “higher-risk,” then employers must take additional steps to stop the spread of the coronavirus. The types of workplaces that could qualify as higher-risk include:

High-volume retail establishments
Meat processing
Correctional facilities
Public transit

These are just examples, and a higher-risk workplace can include any workplace that has one or more of the following characteristics:

A mix of vaccinated and unvaccinated employees working close together.
Vaccinated workers having frequent and prolonged contact with members of the public who may not be vaccinated.
Unvaccinated workers with exposure to the coronavirus, especially in aerosolized form.
Workers share transportation or living quarters with those who aren’t vaccinated or are otherwise at risk of infection.

Discrimination Protections Employers must not discriminate against employees in any way because an employee has:

Exercised their rights under this new law;
Decided to voluntarily wear the employee’s own personal protective equipment; or
Raised a reasonable concern about a potential risk of coronavirus infection. This includes making a report to the employer, general public or a government agency.

Additional Requirements Most employers in Virginia will need to develop and implement an Infection Disease Preparedness and Response Plan, including assigning someone responsible for the plan’s implementation. This plan must, among other things, create a plan in case there’s a coronavirus outbreak among employees and figure out how to quickly identify and isolate employees who are infected or may be infected. Employers also have to train their employees on how to identify signs and symptoms of a coronavirus infection as well as any other requirements created by this new regulation. Summing It Up The new law makes permanent many of the temporary standards put into place in 2020. In addition to imposing things employers must do to minimize the risk of coronavirus infection, many of the requirements revolve around how to handle infected employees or those suspected of being infected.

Virginia’s New Coronavirus Workplace Rules

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