Virginia Promulgates the Nation’s First Mandatory COVID-19 Workplace Safety Regulation

By Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  VA EOThe Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northam directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.

While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule).  The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.

Each category has a separate list of precautions employers are required to take Continue reading