Virginia Considers COVID-19 Safety Standard Repeal
The state's Department of Labor and Industry recently released guidance to assist employers in protecting workers from exposure to COVID-19 moving forward:
Guidance for Employers to Mitigate the Risk of COVID-19 to Workers
2/28/22 UPDATE: Virginia Governor Glenn Youngkin is considering repealing the State's standard to protect employees from COVID-19. On January 15, Governor Youngkin signed an executive order to direct the Virginia Safety and Health Codes Board to review the necessity of the rule and report back to the Governor with their findings.
Virginia's coronavirus worker protections were the first in the nation, established in the summer of 2020, with 15 states later creating similar regulations. Virginia's permanent COVID-19 standards for employers took effect on January 27, 2021.
If repealed, Virginia employers would no longer have to require masks or social distancing for indoor workers. This would rescind requirements for COVID-19 employee training, ventilations systems, and Virginia Department of Health notifications of outbreaks.
State and Federal safety inspectors, however, could still cite employers for Federal OSHA respirator mandates and/or OSH Act compliance.
1/14/21 UPDATE: On January 13, Virginia's Safety and Health Codes Board passed a resolution authorizing permanent coronavirus standards for employers in the state. These permanent standards mirror the temporary rule and are expected to appear in 16 VAC 25-220 under jurisdiction of the Virginia Occupational Safety and Health program (VOSH).
Like the temporary rule, the permanent rule will require employers to create a workplace coronavirus protection program and to train workers on how to comply. This protection program must include guidelines for social distancing, cleaning, and wearing of face masks while on the job.
The effective date for the permanent standard remains unclear, but is expected to be implemented before the temporary rule expires on January 26.
1/5/21 UPDATE: As Virginia's temporary COVID-19 rule is set to expire on January 26, 2021, worker advocacy groups pressed State safety board officials to enact permanent coronavirus worker protections to last through the public health emergency and beyond.
The suggestion was debated at a public hearing on Tuesday, January 5, when industry groups like Virginia Manufacturers Association questioned the need for such measures, arguing that the temporary standard does not provide the transparency and feedback business owners need and has added undue burdens to business operations across the state.
The State safety board has two more meetings scheduled to discuss a permanent COVID-19 rule with the potential for additional meetings. If enacted, this would be the first permanent State coronavirus standard in the US.
7/15/20 UPDATE: On July 15, the Virginia Safety and Health Code Board passed the Emergency Temporary Standard, Infectious Disease Prevention, to take effect July 27, 2020.
By August 26, most Virginia employers must provide employees with job-specific education and training on preventing transmission of COVID-19 (Virginia Dept.of Labor and Industry). The new training requirement applies to employers with hazards or job tasks classified in the regulation as "very high", "high", or "medium" exposure levels.
For details on the COVID-19 training requirements, see 16 VAC 25-220-80.
Infectious Disease Preparedness and Response PlansIn addition to providing COVID-19 for employees, the new regulations require employers with "very high", "high", or "medium" risk exposure levels to create an Infectious Disease Preparedness and Response Plan, and train employees on the plan (with some exceptions).
The Plan and employee training on the Plan must be completed by September 25, 2020, i.e. sixty days after the effective date of July 27 (16 VAC 25-220-70).
View the complete guidelines.
The Virginia State Safety and Health Code Board has voted to create workplace safety regulations surrounding COVID-19, citing the thousands of comments received concerning social distancing and mask violations and a lack of Federal enforcement.
The board revealed the draft of State regulations at a virtual presentation on June 24 and approved advancing the regulations in a 9-3 vote. The emergency temporary standard was drafted by the state’s Department of Labor and Industry, under the Governor’s direction, in late May. The board is expected to amend and finalize the standard in the coming days.
The current draft of Virginia’s standard requires employers to develop policies for workers dealing with coronavirus-like symptoms, while prohibiting those workers suspected of having the coronavirus from showing up to work. According to the Washington Post, these rules would compel companies to alert workers of possible exposure to infected co-workers within 24 hours, while also mandating physical distancing, sanitation, disinfection, and hand-washing procedures.
When asked about the draft regulations, the Governor’s office cited a lack of Federal enforcement from OSHA. Most of OSHA’s coronavirus standards are guidelines, which carry fewer legal ramifications than Virginia’s standard. If enacted, employers who fail to comply with the draft rules could face up to $124,000 in fines and a potential business closure.
Virginia’s Standard Faces Harsh CriticismMany businesses and employer organizations issued concerns over the new draft rules, calling them “one size fits all” that do not work across all industries. Many businesses also said they were worried that the new rules could add a greater financial burden during an already economically strenuous time.
The poultry industry in particular played a central role in the discussions. The City of Harrisonburg pledged its support for the measure, citing over 300 poultry workers in the area contracting the virus. However, the Virginia Poultry Federation opposed the measures, noting that existing guidelines from the CDC and OSHA are sufficient.
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