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Recent Legal Updates

Effective July 27, 2020, Virginia enacted 16 VAC 25-220 et seq., which is enforced by the state’s OSHA agency (“VOSH”). This is a temporary, emergency statute and it applies to private employers and to state/municipal workplaces; however, it does not apply on federal property in Virginia, which is under federal OSHA jurisdiction. It is effective for six (6) months, but can be made permanent through state law.

The rule requires all employers to mandate social distancing measures and requires the use of face coverings for employees in customer-facing positions, as well as when social distancing is not possible. Employees must have frequent access to handwashing facilities or hand sanitizer, and high-contact surfaces must be regularly cleaned. In addition, if a worker tests positive, co-workers must be notified within 24 hours. Workers who are known or suspected to be positive for COVID-19 cannot return to work for 10 days or until they receive two consecutive negative tests.

Worksites are ranked according to the risk level to workers – low to very high – and requirements are modified accordingly. Health care workers are at highest risk, poultry plants (nearly 400 poultry workers in Va. have tested positive) would be considered at medium risk, as would retail operations. Each category has a separate list of precautions to take to prevent COVID infections. These range from stringent personal protective equipment (PPE) and sanitation mandates for high-risk situations, to more lenient restrictions for lower risk workers who can achieve minimal occupational contact with other employees, persons, or the public. To designate a task as low-risk, employers will be expected to utilize engineering, administrative and work practice controls, such as floor-to-ceiling barriers, staggered work shifts or remote work where feasible. Employees at “medium” or higher risk would also require training on the worksite’s anti-infection measures, with written documentation of compliance. The rule also clarifies that cloth face coverings do not constitute PPE, as the purpose is to prevent spread of COVID-19, rather than protection of the wearer.

VOSH can issue civil penalties of up to $124,000 per violation.

Section 16 VAC 25-220-90 prohibits discrimination against an employee for exercising their rights under the statute. No person shall discharge or in any way discriminate against an employee because the employee has exercised rights under the safety and health provisions and implementing regulations for themselves or others. They cannot be discharged or in any way discriminated if they voluntarily provide and wear their own PPE, including but not limited to a respirator, face shield, or gloves, or face covering if such equipment is not provided by the employer, provided that the PPE does not create a greater hazard to the employee, or create a serious hazard for other employees. Employers cannot discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.

Moreover, nothing in the law limits an employee from refusing to do work or enter a location they feel is unsafe.