By Dan C. Deacon and Eric J. Conn

On July 15, 2020, Virginia OSHA became the first State OSH agency in the nation to promulgate an Emergency Temporary Standard regulating COVID-19 in workplaces.  Last week, in a 9-4 vote, the Virginia Safety and Health Codes Board went a step further and finalized a “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19,” making Virginia the first state in the country to issue a permanent rule regulating COVID-19 in the workplace.  The regulation has now been approved by Virginia Governor Ralph Northam (January 26, 2021) without change, and was published in a paper of public record (the Richmond Times-Dispatch) on January 27, 2021, so VOSH’s permanent infectious disease rule is officially in effect.

As we previously detailed, in its emergency rule form, the COVID-19 regulation required Virginia employers to:

1. Develop and implement written COVID-19 infection control plans that include:
   • mandating social distancing measures
   • requiring face coverings for employees in customer-facing positions and wherever social distancing cannot be assured
   • providing frequent access to hand washing or hand sanitizing
   • regularly cleaning high-contact surfaces.
   • adopting robust sanitation procedures
   • ensuring appropriate air handling systems
   • implementing policies and procedures for isolating and removing known COVID-19 or suspected COVID-19 employees from the workplace, and for when it is safe for them to return to work (using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances)
   • requiring all employees to be notified within 24 hours if a coworker tests positive for COVID-19
   • requiring notification to VOSH within 24 hours of the discovery of three or more employees testing positive within a 14-day period.

2. Provide COVID-19 related training
3. Provide employment protection for employees who wear their own PPE or who raise a reasonable concern about infection control.

The ETS also provided some flexibility based on evolving CDC guidance – stating that employers would avoid a citation where the employer complied with CDC guidelines to mitigate COVID-19, so long as the CDC recommended practice provides equal or greater protection than the requirement in the ETS.  The emergency standard was set to expire January 26, 2021, which is why VOSH moved so quickly to issue this permanent regulation.

The final Permanent Infectious Disease Rule adopts most of the structure and detail of its predecessor emergency rule, but it includes several important revisions, which generally either clarify existing requirements or ease some of the more burdensome requirements that were reported to VOSH to be excessive, impractical, or in conflict with existing laws and updated CDC guidance.

Here are the most notable changes and new provisions that Virginia employers need to note:

• Contingency Planning Modifications. Contingency planning for business operations in the event of an outbreak and flexible sick leave policies, have been removed.
  • increased rate of employee absenteeism;
  • options for conducting essential operations with a reduced workforce, including cross-training employees across different jobs in order to continue operations or deliver surge services; and
  • interrupted supply chains or delayed deliveries.

• Not For Enforcement of Executive Orders. The permanent rule will NOT be used as tool to enforce Governor Northam’s Executive Orders against employers.
• Reduces Dept. of Health Reporting. The permanent rule reduces the burden from the ETS to report every single positive COVID-19 case to the Virginia Department of Health, to now reporting only “outbreaks” of two or more cases.  This change memorializes a change that had already been published informally on VOSH’s and VDH’s websites in early December 2020.
• Less Contact Tracing. Employers are no longer required to trace an infected employee’s contacts for a full 14 days prior to the infected worker’s positive test, as had been required by the ETS.  Rather, the permanent rule now requires employers to identify other persons exposed at the workplace only within 2 days before the infected worker’s symptom onset (or positive test if the employee has been asymptomatic) until 10 days after, and to notify only those employees, other employers, and building/facility owners.
• Enforcement Discretion for PPE In Short Supply. VOSH will NOT initiate enforcement actions against healthcare providers and other employers that make good faith efforts to secure respiratory and other PPE that is in short supply.
• Defines “Face Covering”. The permanent rule has developed a more robust definition of face covering to which employers should pay particularly close attention. New in the permanent standard, “face covering” is now defined as:

“an item made of two or more layers of washable, breathable fabric” that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin.”  The definition also clarifies that face coverings “shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl.”

• Realigns Return-to-Work Criteria with CDC Guidance. The permanent rule eliminates the test-based return-to-work criteria that had been written into the ETS, now realigning the criteria with current CDC guidance, which are:
  • Employees known to be infected with COVID-19, but who never experience symptoms may not return to work until 10 days after the date of their first positive RT-PCR test.
  • Symptomatic employees known or suspected to be infected with COVID-19 may not return to work until:
    • the employee is fever free (less than 100.0 F) for at least 24 hours;
    • respiratory symptoms have improved; and
    • at least 10 total days have passed since symptoms first appeared.

[*Note that the predecessor ETS required employees to be fever-free for 72-hours, now reduced to 24 hours.]

• Eliminates Strict Air Quality Control Requirements. The permanent rule deletes references to (i.e., eliminates the requirement to) meet ASHRAE and ANSI standard airflow requirements.  The relaxed standard requires employers, to the extent feasible, and only for systems that they can control, to increase total airflow to occupied indoor workspaces.  While the revised standard urges employers to strive to use Minimum Efficiency Reporting Value 13 (MERV-13) as the standard for filtration quality, employers are only required to use the best air filtration consistent with their existing filtration system.
• N95s and Air Ventilation In Work Vehicles. The permanent rule clarifies that when employees are required to travel together in a vehicle for work, employers must provide access to fresh air ventilation (e.g., open windows/not recirculating cabin air) and establish procedures to maximize separation inside the vehicle.  More significantly, however, the permanent rule also makes clear that all employees in a work vehicle must wear a face covering, but only “[u]ntil adequate supplies of respiratory protection [e.g., N95 respirator masks] become readily available [beyond medical and first responder employees.]”  Presumably then, N95 respirator masks will become mandatory in shared work vehicles once VOSH considers the supply of N95s sufficiently available.
• No Sunset Provision. The permanent rule does not include any sunset provision.  The Virginia Safety and Health Codes Board rejected Industry’s calls for an expiration date to be built into the permanent standard, out of concern that a permanent rule could be needed to prevent COVID-19 outbreaks among workers who choose not to be vaccinated.

Now that the rule is adopted, employers will have until March 26^th to implement revisions to their written infectious disease plans to account for these changes to the rule. 

VOSH has been quite active conducting inspections under the ETS and it has begun issuing citations just within the last few weeks.  With a permanent rule, it is anticipated that VOSH’s enforcement efforts will continue throughout the winter and well into the year.  As such, it is important for employers to act quickly.

Accordingly, employers should begin evaluating their written plans and existing COVID-19 mitigation protocols to ensure they can quickly come into compliance with the changes in the permanent rule.  Employers should also closely monitor VOSH’s webpage with a list of Frequently Asked Questions and other resources for additional guidance as the changes to the permanent rule are rolled out. Also check out the series of our own FAQs about the VOSH COVID rule.

Contact any member of Conn Maciel Carey’s COVID-19 Task Force for help with a gap assessment of your existing plans and/or modifying your plans, or with a VOSH inspection or enforcement matter related to the new permanent rule.  We have been working closely with employers across the country to develop effective workplace-specific written Exposure Control and Response Plans to address the pandemic hazard and meet compliance obligations.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.