In July 2020, Virginia became the first state in the nation to issue a comprehensive COVID-19 emergency temporary standard (“ETS”) addressing the threat of COVID-19 transmission in the workplace. The July 2020 ETS was revised several times before being finalized in August 2021 as “16VAC25-220 Virginia Occupational Safety and Health (“VOSH”) Program Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19” (“Standard”). Under the Standard, most employers were mandated to perform exposure assessments, implement infection reporting mechanisms, enforce employee masking and physical-distancing protocols, develop testing and return-to-work policies, and conduct COVID-19 prevention training and education programs for employees.
On March 21, 2022, the Virginia Safety and Health Codes Board voted in favor of revoking the Standard, effective March 23, 2022. The widely anticipated decision to revoke the Standard comes as COVID-19 case counts continue to decline across much of the Commonwealth and beyond. While employers remain subject to the U.S. Centers for Disease Control’s (“CDC”) advisory guidance for reducing COVID-19 transmission (and many will choose to continue to follow the CDC’s guidance), the mandatory obligations of the Standard are no more.
In place of the voluminous Standard, the Virginia Department of Labor and Industry (“DOLI”) proposes to adopt a one-page guidance document to help employers continue to provide a safe, healthy workplace and mitigate the spread of COVID-19 among their employees. The draft guidance, available for review on the DOLI website, encourages employers to reduce the risk of COVID-19 transmission in the workplace by:
- Facilitating employee COVID-19 vaccinations and boosters;
- Encouraging employees with COVID-19 symptoms to stay home from work and seek advice from a health care provider on testing and treatment;
- Requiring employees with confirmed COVID-19 infections to stay home;
- Providing employees with face covering or surgical masks;
- Encouraging employees to follow best practices for personal hygiene, including regular handwashing;
- Making COVID-19 policies and procedures accessible and familiar to employees;
- Operating and maintaining ventilation systems in accordance with manufacturers’ specifications to achieve optimal performance;
- Recording and reporting work-related COVID-19 infections and fatalities, consistent with state and federal recordkeeping standards; and
- Following other applicable standards and guidance from the VOSH Program, including requirements for personal protective equipment, respiratory protection, sanitation, protection from blood-borne pathogens, employee access to medical and exposure records, and requirements to provide employees with a workplace free of recognized hazards.
The draft guidance will be published in the Virginia Register on March 28, 2022, for a thirty-day public comment period before it becomes effective. In the interim, however, employers no longer are required to comply with the Standard’s previous mandatory guidance.
If you have any questions, please do not hesitate to contact David Kushner (dkushner@wilsav.com) or another member of our Employment Law Practice Group.