At the Virginia Bar Association’s Labor and Employment Conference, we heard first-hand from Jay Withrow, Esq., the Director of Legal Support for the Virginia Department and Labor and Industry’s Virginia Occupational Health and Safety (VOSH) program. VOSH is the agency that enforces Virginia’s Final Permanent Standard (pdf) (previously Virginia’s Emergency Temporary Standard). The Standard sets the state-wide requirements Virginia employers must follow to mitigate COVID-19 in the workplace.
While we have detailed articles on those requirements (see: Virginia’s COVID-19 Emergency Standards Are Now Permanent and Recent Changes to Virginia’s Final Permanent Standard for COVID-19), these generally include matters such as return-to-work guidance after an exposure or positive test, when employers must have physical barriers or engage in disinfecting, and addressing masking and other PPE in the workplace, etc.
Have employers been complying with the Standard so far?
Employers have reported over 26,000 incidents of two or more confirmed cases of COVID-19 in their workplace. VOSH has received nearly 14,000 calls about employer-related COVID-19 issues and over 2,100 complaints about employers’ handling of COVID-19 precautions. About 41% of VOSH’s inspections to date have resulted in violations. Half of workplace fatalities in the last year are classified as COVID-19 related.
How does VOSH enforce the Standard?
There are two types of COVID-19 VOSH enforcement actions employers should be aware of:
- Informal investigations
- Onsite inspections
Informal investigations can result from employee complaints, hospitalizations, or workplace outbreaks. In conducting an investigation, VOSH will provide a summary of the complaint to the employer, and the employer must then investigate the allegations and provide a written response detailing any and all other safety measures the employer is taking to mitigate the spread of COVID-19 in the workplace.
Employers should not take this task lightly. Not only will the complainant be entitled to a copy of the employer’s response (and have an opportunity to respond), but the employer is required to post the complaint along with the response in a place that is “readily available” to its employees. An employer’s response can result in continued investigation by VOSH, an onsite inspection, or, hopefully, a closed case.
Inspections generally occur when there is an employee death or hospitalization related to COVID-19, but can also result as a response to findings in an informal investigation. Inspections are a significant event, as they can result in civil penalties. During an onsite inspection, VOSH is not just looking at your COVID-19 precautions—they are looking for every type of safety mishap.
How can employers create a safe workplace and avoid VOSH enforcement?
Start by making sure you know what requirements apply to your company. The state Standard applies to all Virginia employers. Ignorance is no defense.
Take employee or third-party complaints seriously. Someone may have a good point about a proper precaution to take. Additionally, use the complaint as an opportunity to educate the complaining employee or your whole workforce about the precautions your company is taking.
Finally, think about your relationships with third parties. Employers are at a higher risk for VOSH complaints or enforcement actions when they are not fully in control of their particular worksites. For instance, you may have sub-contractors on site, members of the public entering your facilities, or perhaps employees who are out and about when performing their duties.
Employers can face VOSH enforcement actions for violations caused by third parties at their workplace. Employers in these types of situations should have proper signage, screening methods, and make documented efforts to ensure third parties are taking appropriate precautions. This may entail a phone call or letter to these sub-contractor contacts as to what measures they are taking and how they are handling contact tracing, including when it may impact your employees!
VOSH’s updated standard has left many Virginia employers unsure of how to comply. If you have questions about meeting Virginia’s Final Permanent Standard or if you’re facing a VOSH enforcement action, please contact a member of our Labor & Employment team.