VOSH and the Virginia Dept. of Health Adopt Big Changes to Employers’ COVID-19 Requirements

By Conn Maciel Carey’s COVID-19 Task Force

Virginia made two significant changes to its COVID-19 regulatory landscape last week as it relates to quarantine measures and reporting positive cases to the Virginia Department of Health (VDH).

First, VDH has officially adopted CDC’s new quarantine guidance.  VDH and CDC continue to recommend a quarantine period of 14 days.  However, CDC guidance now includes two additional options for how long quarantine should last.  The safest option is still to quarantine for 14 days after last exposure, shorter quarantine periods are acceptable for close contacts who are quarantining but who have not experienced any systems.  Specifically, asymptomatic close contacts may end a quarantine after day 10 without testing, or after day 7 with a negative PCR or negative antigen test, if the test was performed on or after day 5.  It is still important to watch for symptoms of COVID-19 until 14 days after exposure, and to take other prevention measures including wearing a mask, distancing, and frequent hand washing.

VDH formally adopted this revised quarantine guidance in an announcement on its website for everyone except healthcare workers or healthcare facilities.  VDH recommends that healthcare personnel and residents and staff in healthcare facilities continue to use a 14-day quarantine.

The provision in VOSH’s COVID-19 Emergency Temporary Standard (ETS) that permits employers comply with recommendations in CDC guidelines even where they may conflict with provisions of the VOSH ETS, as long as the CDC guidance is equally protective, when read with VDH’s formal adoption of the CDC’s new relaxed quarantine guidance, indicates that Virginia employers may follows the CDC guidance with confidence.

Second, VDH and the Virginia Department of Labor and Industry issued a notice on the Outreach, Education and Training for the COVID-19 Emergency Temporary Standard website relaxing the requirement for Virginia employers to notify VDH of every single COVID-19 positive case among its workforce (regardless of a work-related connection (See 16 VAC 25-220-40(B)(8)(d)).  Now, employers are only required to report an “outbreak” of two or more positive cases.

The notice states:

Effective December 8, 2020, the Virginia Department of Labor and Industry (DOLI), in consultation with the Virginia Department of Health (VDH), has determined that employers no longer need to report single COVID-19 positive cases to VDH, in order to comply with the Virginia Occupational Safety and Health (VOSH) program’s Emergency Temporary Standard (ETS) for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19.

However, after the initial report of outbreak (two or more cases), employers shall continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed.

After the outbreak is closed, subsequent identification of two or more cases of COVID-19 during a declared emergency shall be reported, as above.

While there is no distinction between cases that are work-related and non-work-related for triggering this outbreak reporting requirement, DLI has made clear in its FAQs the reporting provisions of 16 VAC 25-220-40(B)(8) only apply to situations where an employee was present at the place of employment within the previous 14 days from the positive test.  So, even if it is very clear that all or some of the employees at issue contracted the illness away from work, if they were each present at work during a two-week period, the circumstance must still be reported to VDH.

Speaking of VOSH’s COVID-19 ETS, on December 7, 2020, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates in Virginia), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry) presented a webinar regarding Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard.  We are pleased to share links to a copy of the slides and a recording of the webinar.  During the webinar, we collected numerous questions from the audience, and in collaboration prepared the written Q&A linked here.  These Q&As have also be incorporated into our full compendium of COVID-19 FAQs on Conn Maciel Carey’s COVID-19 Task Force Resource Page.

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