On July 15, 2020, the Virginia Safety and Health Codes Board adopted the Emergency Temporary Standard, Infectious Disease Prevention, SARS-CoV2 Virus that Causes COVID-19 (ETS), making Virginia the first state to adopt COVID-related workplace safety regulations. The text of the ETS is currently being finalized and will go into effect upon publication, which is expected to occur the week of July 27, 2020. The ETS will remain in effect for at least six months.

The ETS is designed to supplement current Virginia Occupational Safety and Health Program (VOSH) rules and to protect Virginia workers by requiring all employers to follow the workplace safety regulations. Note that all employers must classify their employees according to hazards they are exposed to as “very high,” “high,” “medium” or “low,” and additional requirements apply to employers with employees in these categories. Employers with hazards or jobs in the “very high” or “high” category—or in the “medium” category with 11 or more employees—must prepare a written Infectious Disease Preparedness and Response Plan.

All employers in Virginia are subject to the following:

1. Exposure Assessment and Determination, Notification Requirements, and Employee Access to Medical Records

• Assess their workplace for hazards and jobs that may expose employees to COVID-19.
• Encourage employees to self-monitor.
• Develop and implement policies to address a situation where they are notified that an employee tested positive for COVID-19 or reporting requirements if an employee is experiencing COVID-19 symptoms.
• Not permit known or suspected COVID-19 employees to return to work or remain at work until cleared.
• Notify all employees within 24 hours if a coworker or other person who was present at the workplace within the previous 14 days tests positive for COVID-19.

2. Return to Work

• Develop and implement policies for the return to work of known or suspected COVID-19 employees that prohibit employees from returning to work until 72 hours have passed without symptoms (a fever without use of fever reducing medicine and improvement in respiratory symptoms) or no symptoms and 2 negative COVID-19 tests collected at least 24 hours apart. For asymptomatic individuals who have tested positive, return is permitted if at least 10 days have passed since their first positive COVID-19 test or they have two negative tests taken at least 24 hours apart.
• Develop policies that are designed to ensure that employees observe physical distancing. Where the nature of the employee’s work does not allow physical distancing, employers must ensure compliance with respiratory protection and personal protective equipment standards applicable to their industry and Virginia Executive Orders.
• Close or control access to lunchrooms.

3. Sanitation and Disinfecting

• In addition to compliance with ETS, employers must comply with VOSH sanitation standards applicable to their industry.
• Areas in the workplace that known or suspected COVID-19 employees have accessed must be disinfected prior to allowing other employees to that area (unless they have been unoccupied for seven days).
• Regularly clean (at the beginning and end of each shift) all common areas, including bathrooms, frequently touched surfaces and doors.
• Ensure access to hand washing or hand sanitizing, where feasible.
• Employees that interact with customers, the general public, contractors and other persons should be provided supplies necessary to clean and disinfect surfaces where there is potential for exposure to the virus or other employees.

4. Nondiscrimination

• Retaliation and discrimination against workers who raise concerns about infection risks on the job or with each other to government agencies or on social media is prohibited.

5. Personal Protective Equipment

• Unless otherwise provided in the ETS, when engineering, work practice or administrative controls are not feasible or do not provide sufficient protection, employers must provide personal protective equipment to their employees and ensure its proper use in accordance with VOSH.

The emergency temporary standards, infectious disease preparedness and response plan templates, and training guidance will be posted on the Virginia Department of Labor and Industry website. Workers who feel unsafe in their workplace can file a formal complaint with the federal Occupational Safety and Health Administration.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.