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

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
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:

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

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

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.

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Virginia OSHA Moves to Make Permanent Its New Infectious Disease Standard

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:

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

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.

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

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.VOSH FAQs

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

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 regardingEverything 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 infectionsVOSH Cover Slide 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

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

Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

By Daniel C. Deacon and Kara M. Maciel

Workplace violence has become a serious issue for employers throughout the United States. In the wake of the recent mass shootings that occurred in San Bernardino, CA and Hesston, KA, both of which occurred at least in part at an employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented.  Although these two incidents may not have been foreseeable or preventable,WPV Image these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.

Workplace violence can be categorized in three ways:

  1. Violence by an employee;
  2. Violence by a stranger; or
  3. Violence by a known third party.

Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action.  In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties.  However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.

Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence.  This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading