Lilias M. Gordon

Lilias M. Gordon
Associate

Leah M. Stiegler

Leah M. Stiegler
Associate

Victor O. Cardwell

Victor O. Cardwell
Principal and Chairman

Virginia’s COVID-19 Emergency Temporary Standards Are Now Permanent

The Virginia Department of Labor and Industry (DOLI) has enacted a Permanent Standard to replace the Emergency Temporary Standard (ETS) (pdf) that became law for Virginia employers over the summer. These Permanent Standards include some significant changes to the ETS. Employers will have to be ready to update their policies.

To recap, the ETS requires employers to develop and train employees on their plan for limiting the spread of COVID-19. The ETS also requires employers to report cases of COVID-19 to DOLI. Details about the ETS requirements can be found in our legal update from July 27, 2020.

When will the Permanent Standard start and how long will it last?

The Permanent Standard replaced the ETS on January 27, 2021.  However, preparedness and response plans do not need to be updated until March 2021, which is good news for employers.

Ironically, even though the new rule is called a Permanent Standard, it can expire. The law will no longer be in effect if, first, both the Governor’s State of Emergency and the Commissioner of Health’s Declaration of Public Emergency are lifted, then, the Virginia Safety and Health Codes Board determines the Standard is no longer needed.

Do employers need to change their preparedness plans?

Yes, employers will need to make several changes to the preparedness plans they drafted to comply with the ETS.

Employers may need to change their policy on masks.

The Permanent Standards clarify what constitute approved masks:

  • Two or more layers of washable, breathable fabric, fitting over the nose, under the chin, and against the sides of the face without gaps
  • Neck gaiters made of two or more layers
  • Face coverings cannot have exhalation valves or vents
  • Face shields are not substitutes for face coverings (Note this fact for your policies!)
  • When an employee cannot wear a face covering, employers must provide either a wrap-around or hooded face shield

The Permanent Standards seem to provide some limited immunity from enforcement actions against employers if they are unable to provide Personal Protective Equipment despite good faith efforts to acquire it.

Return-to-work policies may need to be updated.

When employees can return to work has changed to closer reflect CDC guidance.

  • Symptomatic employees with severe illness or who are immunocompromised may be contagious longer than 10 days and may need extended isolation of up to 20 days after symptom onset.
  • Employees who are severely immunocompromised (as defined by the Permanent Standards) may require testing to determine when they can return to work.
  • The Permanent Standard also update the signs and symptoms of COVID-19 to align with CDC’s list.

Employers may need to train workers on the changes made to their ETS plan.

The ETS states employees must be retrained if they do not have the understanding and skill required to protect against COVID-19 in the workplace. The new standard makes this easier because a physical or electronic signature is unnecessary if other documentation of training completion exists.

Do employers still need to notify VDH and other employees of positive COVID-19 tests?

Employers are still required to have a system for receiving reports from employees and subcontractors who have tested positive and have been physically present at the worksite. The Permanent Standard now states employees only need to report that they have COVID-19 if they have been to work within 2 days before symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test). This is a change from the previous 14-day window.

The Virginia Department of Health (VDH) need not be notified of positive cases unless the worksite has two or more confirmed cases of COVID-19. Employers must make a report within 24 hours and give VDH the name, date of birth, and contact information of each COVID-19 positive employee.

Woods Rogers Labor & Employment attorneys can advise employers on how to update their preparedness plans to conform to the Permanent Standard.