On December 10, 2020, The Virginia Occupational Safety and Health (VOSH) Program released its Revised Proposed Permanent Standard for Infectious Disease Prevention of the SAR-CoV-2 Virus that Causes COVID-19. Generally, these revisions serve to clarify previously existing requirements or reduce the impact of some requirements that were found to be excessive, impractical, or in conflict with existing laws and updated CDC guidance.
The revisions, if approved by the Governor without further revisions, will be in place throughout the duration of the Governor’s COVID-19 State of Emergency and the Commissioner of Health’s COVID-19 Declaration of Public Emergency. Within 14 days of the expiration of such states of emergency, however, the Virginia Safety and Health Codes Board shall re-evaluate whether there is a continued need for the standard.
The revised Virginia standard, which applies only to employer locations covered by the Department of Labor and Industry jurisdiction (and not those maritime or federal enclave locations covered by federal OSHA), provides many updates. Most noteworthy:
- Face Coverings. The standard provides a more robust definition of face covering, which states that such coverings have two or more layers of washable, breathable fabric, and that such coverings do not include exhaust valves. The new definition also provides that the masks now protect the wearers as well as those around them. The standard sets forth that face coverings are the rule, and other similar products such as face shields, which do not provide equivalent protection, are allowed only for individuals whose health issues prevent the use of a face covering.
- Tracing Workplace Exposure. Employers no longer need to trace a symptomatic employee’s contacts for 14 days before a positive test. Instead, the revised standard defines exposure as coming into close contact with the infected person during the period between 2 days before symptom onset (or positive test if the employee is asymptomatic) and for 10 days after onset (or positive test).
- Reporting to VDH. This revision reduces the need to report cases to the Virginia Department of Health (“VDH”) in that employers need only report to VDH when a particular worksite has 2 or more positive cases, within 24 hours of becoming aware of such cases. This reporting requirement is down from the need to report single cases.
- Return to Work. Employees may now return to work after being fever-free (temperature below 100° F) for at least 24-hours; after demonstrating an improvement in respiratory symptoms; and after at least 10 days have passed since symptom onset. The previous Emergency Temporary Standard (“ETS”) required employees to be fever-free for 72-hours before the revisions.
- Testing. The standard eliminates references to testing, including the test-based strategy for returning employees to work. In doing so, the revision aligns the ETS with updated CDC guidelines, which do not recommend testing to determine when to discontinue isolation.
- Vehicles. The revised standard clarifies PPE requirements for employees riding in vehicles. The revisions include an employer requirement to provide employees with face coverings for employees occupying work vehicles with other co-workers. The revisions also require air ventilation in vehicles, such as the use of open windows and not using recirculated air. Employers must establish procedures to maximize separation between employees during travel, but no specific requirements are made on this point.
- Airflow. The standard eliminates the need to follow American National Standards Institute (“ANSI”) air flow requirements, as such requirements were thought to be in conflict with the Virginia Uniform Statewide Building Code. The relaxed standard requires employers, to the extent feasible and only for systems under their control, to increase total airflow to occupied spaces. While the revised standard cites Minimum Efficiency Reporting Value 13 (MERV-13) as the filtration quality to which employers should strive to meet, employers are only required to use the best air filtration devices as their existing systems filtration require. Employers are also to direct air flow in a clean-to-less-clean manner where possible, have employees work in clean ventilation zones through which outside parties such as visitors do not travel, and ensure restroom exhaust fans work properly.
- Infectious Disease Preparedness and Response Plan. Employers are now required to address in their plan possible transmission at large events or enclosed work areas.
Without further revision, this revised standard will be effective on January 27, 2021, and the new preparedness and response plan part is effective March 26, 2021. Employers should evaluate their existing processes and infectious disease preparedness and response plans to determine the changes needed to come into compliance with the new standard. Vandeventer Black’s attorneys are available to assist businesses with meeting these new requirements.