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:
- 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.
- Provide COVID-19 related training
- 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.