The Virginia Safety and Health Codes Board enacted a Permanent Standard on COVID-19 in workplaces in a 9-4 vote on January 13, 2021.

When the Emergency Temporary Standard was passed in July, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces.  The temporary regulations are set to expire January 26, 2021.

The Permanent Standard will supersede the Emergency Temporary Standard. Governor Ralph Northam will review the Permanent Standard and, if he does not suggest revisions, the Permanent Standard will be effective upon filing with the Registrar of Regulations and publications in a newspaper in Richmond, Virginia. If the Governor suggests revisions, the Safety and Health Codes Board will consider them, and the standard will be effective upon filing and publication.

The Permanent Standard includes the provisions that are in the Emergency Temporary Standard, with several changes.  Click HERE to read the final proposal.

• Requirements unrelated to occupational safety and health, such as contingency planning for business operations in the event of an outbreak and flexible sick leave policies, have been removed.

• No enforcement actions will be brought against healthcare providers and other employers that are making good faith efforts to secure Personal Protective Equipment (PPE) that is in short supply.

• It cannot be used to enforce Governor Northam’s Executive Orders. This takes on particular significance in light of Governor Northam’s most recent Order expanding face covering requirements, particularly in indoor settings. It is unclear whether the Order applies to low-hazard workplaces with physically distanced employees.

• It scales back the requirement to report every single positive COVID-19 case to the Virginia Department of Health to “outbreaks” of two or more cases.

• It eliminates test-based return-to-work requirement, leaving employers with a time-based requirement only.

• It makes the time-based return-to-work requirement consistent with CDC guidance that reduced the requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day.

• It provides alternative controls to the requirement for employers to comply with respiratory standards when multiple employees travel in work vehicles together, in light of shortages of N-95 and other filtering facepiece respirators.

The Permanent Standard carries forward several problematic aspects of the Emergency Temporary Standard.

• Includes no bar on prohibiting employees from coming to work after close contact with an individual who has tested positive for COVID-19.

• Includes several provisions relating to return-to-work and close contact which do not enable employers to benefit from continually evolving CDC guidance.

• Includes whistleblower protections for employees who report concerns to the news media or social media, which may invalidate some employers’ media policies.

• Lacks “safe harbor” protections for employers that protect employees by following CDC guidance

This article was provider by Courtney Malveaux, an attorney in the Richmond, Virginia office of Jackson Lewis P.C. and Co-Leader of the firm’s Workplace Safety and Health Practice Group. Mr. Malveaux has presented webinars that NFIB Virginia hosted related to the regulations. You can access those webinars and other resources HERE and HERE.

Also, Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. You may reach Mr. Malveaux at Courtney.Malveaux@jacksonlewis.com or at (804) 212-2862.