Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance

April 5, 2022April 9, 2022Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020. Through all the fits and starts with federal OSHA’s COVID-19 rulemaking, VOSH’s COVID-19 regulation was a consistent presence through most of the pandemic. Indeed, that ETS was made “permanent” in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.

However, on his first day in office – January 15, 2022 – new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor’s office to conclude it was not). Not surprisingly, under that political pressure, and in the wake of the Supreme Court’s harsh decision about federal OSHA’s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”) that “based on emerging scientific and medical evidence, [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.”

That Board finding started a 30-day clock for public notice and comment about the Board’s intention to repeal the rule, and as expected, the Board voted on March 21^st to rescind the ETS (effective March 23^rd, 2022).

So where does that leave Virginia employers? Continue reading →

Virginia OSHA Modifies and Makes Permanent Its COVID-19 Regulation — Effective Jan. 27, 2021

January 26, 2021June 11, 2021Eric J. Conn 1 Comment

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:

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.

The final Permanent Infectious Disease Rule Continue reading →

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

December 15, 2020August 12, 2021Theresa Green Leave a comment

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 Continue reading →

[FAQs] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

December 15, 2020August 12, 2021Theresa Green 1 Comment

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.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September.

Now, several months into implementation of the COVID-19-specific regulation, we checked in on the status of the rule, challenges employers have faced complying with it, and enforcement issues. We are pleased to share links to a copy of the slides and a recording of the webinar. Continue reading →

[Webinar Recording] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

December 10, 2020August 12, 2021Theresa Green Leave a comment

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:

Assess potential exposures to COVID-19 in the workplace
Categorize the level of risk exposure from Low to Very High (each with different mitigation requirements)
Develop and implement a written infection control plan
Provide employee training on the virus and control measures in the workplace
Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health

VOSH’s COVID-19 ETS went to effect on July 27th, with major elements of the rule kicking in in August and September. Now, several months into implementation of the COVID-19-specific regulation, we check on the status of the rule, challenges employers have faced complying with it, and enforcement issues. Participants in this webinar will learn: Continue reading →

[Webinar] Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard

November 30, 2020August 12, 2021Theresa Green Leave a comment

On Monday, December 7th at 1 PM ET, join 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) for a webinar regarding Lessons Learned from the Roll-out of Virginia OSHA’s New COVID-19 Standard.

Earlier this Summer, Virginia became the first state in the nation to promulgate a mandatory

safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to:

Assess potential exposures to COVID-19 in the workplace
Categorize the level of risk of exposure from Low to Very High (each with different mitigation requirements)
Develop and implement a written infection control plan
Provide employee training on the virus and control measures in the workplace
Make certain notifications about infected employees to co-workers, to VOSH, and to the VA Dept. of Health

Continue reading →

Fed OSHA and State OSH Plans Address Ventilation to Reduce the Workplace Spread of COVID-19

November 19, 2020November 19, 2020Theresa Green Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

While each week seems to bring news of new COVID-19 rules imposed by a state, county or city, federal OSHA continues to offer guidance of which employers should take notice. Earlier this month, on November 5th, OSHA issued a new publication focused on ways employers can use ventilation to reduce the transmission of COVID-19 virus droplets through the air in their workplaces.

“Ensuring adequate ventilation throughout the work environment can help to maintain a safe and healthy workplace.”

The guidance provides a window into the types of questions OSHA may ask during future COVID-related inspections, and could be referenced as support for General Duty Clause violations. Employees, as well as lawyers representing individuals bringing wrongful death actions on behalf of deceased employees, may also question why an employer opted not to evaluate ventilation systems and take some or all of the steps recommended by OSHA.

We had been bracing for guidance or regulatory requirements related to ventilation, with concerns that it would require capital projects to overhaul existing HVAC systems. But fortunately, this guidance does not go that far, and in fact, most of the recommended steps are not particularly burdensome. For example, OSHA suggests working with a heating, ventilation, and air conditioning (HVAC) specialist to ensure the employer’s HVAC systems are fully functional. OSHA also recommends that employers open windows or provide other sources of fresh air wherever possible, and leave restroom exhaust fans on continuously while operating at maximum capacity — steps that can be achieved without infrastructure changes to the workplace.

More burdensome than leaving a bathroom fan running or a window open, however, OSHA also advises installing air filters with a Minimum Efficiency Reporting Value (MERV) rating of 13 or higher, where feasible (i.e., where the system can handle it), and using portable high-efficiency particulate air (HEPA) fan/filtration systems to increase clean air, especially in higher-risk areas.

When working with an HVAC specialist, the guidance recommends that employers also should confirm that Continue reading →

[Webinar] Technology Solutions for Complying with COVID-19 Requirements

September 3, 2020August 12, 2021Theresa Green Leave a comment

On Tuesday, September 8th at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice) and Nick Eurek (President and Co-Founder of Maptician) for a complimentary webinar regarding “Technology Solutions for Complying with COVID-19 Requirements.”

In July, Virginia became the first state in the nation to promulgate a mandatory rule with a set of requirements designed to protect workers from COVID-19 infections in the workplace. For example, Virginia employers must:

Assess and categorize potential exposures to COVID-19 in the workplace
Implement a written infection control and response plan
Promptly notify potentially exposed co-workers, VOSH/OSHA, and/or the Department of Health about infected workers

But Virginia’s rule really just memorializes the widespread, already enforceable guidance from federal OSHA, the CDC, state and local departments of health, and governors’ offices all across the country, so the policies and controls that must be implemented in Virginia are by and large needed everywhere.

Continue reading →

Virginia OSHA Moves to Make Permanent Its New Infectious Disease Standard

August 19, 2020Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS). There are some important deadlines fast approaching under that new rule:

Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26^th);
Deliver the first of two COVID-19 employee training events (due by Aug. 26^th); and
Implement a written infectious disease preparedness and response plan (due by Sept. 25^th).

We have been helping our clients quickly get up to speed on the new emergency rule. As part of that effort, we co-hosted a webinar with the head of VOSH’s Consultation Program and also prepared an FAQ document about the new rule.

But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.

The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS. By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule. Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention. The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021.

Continue reading →

FAQs About Virginia OSHA’s New COVID-19 Emergency Temporary Standard

August 7, 2020August 7, 2020Theresa Green 3 Comments

On August 3rd, Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Virginia-based Safety Resource Associates), and special guest Jennifer Rose (Director of Cooperative Programs at VOSH) presented a webinar: “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.”

During the webinar, we collected numerous questions from participants about VOSH’s new COVID-19 Emergency Temporary Standard. We have compiled all of those questions from the webinar into this written Q&A document with our answers and useful links throughout. These FAQs have also been incorporated into our broader compendium of COVID-19 FAQs on Conn Maciel Carey’s COVID-19 Task Force Resource Page.

We are also pleased to share these links to a copy of the slides and a recording of the webinar, as well as our article here on the OSHA Defense Report blog about the lay of the land around VOSH’s new rule. And below is a brief recap of the program.

Last month, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to: Continue reading →

[Webinar] Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard

July 27, 2020August 7, 2020Daniel C. Deacon Leave a comment

On Monday, August 3rd at 1 PM ET, join Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Dept. of Labor and Industry) for a complimentary webinar regarding “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard.”

Last week, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to reduce COVID-19 infections in the workplace, when Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an Emergency Temporary Standard (“ETS”). The COVID-19 ETS, which was drafted by Virginia’s Department of Labor and Industry, requires Virginia employers to: Continue reading →

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

July 16, 2020August 7, 2020Eric J. Conn 6 Comments

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. The 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 →