After several weeks of discussion, the Virginia Safety and Health Codes Board (Board) on July 15, 2020 adopted the nation’s first workplace safety standards designed to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19. At this time, the text of the Emergency Temporary Standard (ETS) has not been finalized; however, it will take effect immediately upon final publication, which is expected sometime during the week of July 27, 2020. The announcement of the Board’s action is available here. These standards will be enforceable by the Virginia Department of Labor and Industry’s Occupational Safety and Health Program (VOSH), which can inspect workplaces and impose financial penalties for violation, including up to $130,463 for each willful or repeated violation (with smaller penalties for lesser violations), as well as criminal penalties in certain circumstances.
When it becomes effective, the ETS will apply to all employers in the Commonwealth. Under the most recent, but non-final, version of the ETS, employers will need to assess each employee’s exposure risk level (i.e., “very high,” “high,” “medium,” or “lower”) based on the employee’s job tasks and the specific hazards they face at work to determine the applicable safety standard. Accordingly, employers may need to implement several different standards regarding social distancing, personal protective equipment (PPE), face coverings, sanitization/hygiene, health screenings/testing, and other return-to-work protocols.
The VOSH Program is expected to release training and resource materials on the ETS. Once the ETS becomes effective, employers will have 30 days to provide training to employees on the new standards and 60 days to develop and train employees on an infectious disease preparedness and response plan.
Employers should watch closely for further developments. For more information regarding Virginia’s COVID-19 workplace safety standards or other issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.