On July 27, 2020, Virginia became the first state to adopt mandatory COVID-19 OSHA safety regulations. Employers are now required to develop and implement a number of precautions and procedures designed to limit the spread of COVID-19 at work and to protect the health and safety of their employees. Under the new Virginia OSHA (VOSH) regulations, all employers are required to take the following general steps:

• Infectious Disease Preparedness and Response Plans: Employers must assess their workplace area and activities for hazards that could expose employees to COVID-19 and classify each area or task as “very high”, “high”, “medium”, or “lower” risk under the definitions outlined in the regulations. The risk of COVID-19 is to be assessed both on an industry level and based on the job duties of the individual worker. As such, an employer may be classified as a low risk employer based on its industry, but that same employer may employ high risk workers depending on the jobs performed. An employer should carefully review the regulations’ specific language regarding which industries or jobs, respectively, constitute “low”, “medium”, “high”, or “very high” risk to determine both the industry and job risk classification. Upon completing the risk assessment, any employer with a workplace classification of “medium” or above must review and comply with the specific requirements set forth in the regulations to address those hazards. Employers who classify themselves as “very high,” “high, “or “medium” risk (and who also employ 11 or more employees) must develop and implement a written Infectious Disease Preparedness and Response Plan that is fully compliant with the stated requirements in the emergency regulations.

• Preventative Measures: All employers should ensure physical distancing measures throughout their place of business. Shared surfaces should be regularly cleaned/disinfected, occupancy should be limited, and hand-washing measures should be implemented. Signage or other cues to inform employees or visitors of the policies should be prominent, and all policies should be enforced. Face coverings or masks must be worn by all employees or unless a medical condition prevents an employee from doing so. The new standard does not require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 virus.

• Reporting COVID-19 Cases: All employers also must provide employees information on how to self-monitor for COVID-19, and develop policies and procedures for employees to report possible symptoms or exposure. Employers must establish a system to receive results of positive COVID-19 tests by employees and other personnel, including temps and independent contractors who were present at the workplace within 14 days of receipt of a positive test. The employer must notify employees who may have been exposed to an infected individual within 24 hours of discovery, while keeping that individual’s identity confidential in compliance with other laws, such as HIPAA.

• Return-to-Work Policies: All employers shall develop and implement policies and procedures governing the return to work for symptomatic employees who have been diagnosed with COVID-19 or who are suspected to have been infected, using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances.

Under the symptoms-based approach, employees should not return to work until at least three (3) days after recovering of all symptoms, or ten (10) days after symptoms first appeared. Under the test-based strategy, an employee should not return to work until the fever is gone without the use of medications and the employee can produce two (2) successive negative Covid-19 test results.

Asymptomatic employees should be permitted to return under a test-based or time-based strategy adopted by the employer. Under a time-based approach, an asymptomatic employee may not return to work until at least 10 days after a positive test result, assuming that they have not developed any recognized symptoms. Under the test-based approach, a symptomatic employee may only return to work if he/she can provide two (2) successive negative tests. If the employee does develop symptoms, the symptom-based or test-based strategy shall be used. Serological (or “antibody”) testing may not be used to make decisions about returning employees to work.

• Further Considerations: The cost of corrective measures typically will not be considered in determining whether a violation has occurred, particularly if an employer’s level of compliance lags behind other in its respective industry. Employers must comply with these regulations even if they are compliant with
existing guidelines issued by the CDC or other agencies. If there is a conflict between a new policy and an existing policy, the more stringent requirement should be followed. If an employer fails to comply with these new COVID-19 VOSH regulations, they may face penalties and subsequently potential unsafe workplace charges by impacted employees.

For specific assistance in complying with these new regulations (or any other COVID-19 related matter), please contact O’Hagan Meyer Virginia Labor & Employment team members Charlie Meyer at (804) 403-7101 or Joan McKenna at (804) 403-7107.

Authored by: Joan C. McKenna, Partner, and Ian McDowell, University of Richmond Law School