Virginia DOLI Issues New COVID-19 Rules for Employers

Virginia was one of the only states in the country that issued workplace health and safety regulations related to COVID-19. Indeed, as we reported back in June 2020, Virginia’s Department of Labor and Industry (DOLI) issued emergency regulations early in the pandemic that divided workplaces into categories of risk and imposed regulations on employers for masking, sanitizing, screening, social distancing, quarantining, and returning to work post-infection or direct exposure. Those emergency regulations were re-issued as a permanent standard in January 2021 (referred to as the Virginia Standard for Infections Disease Prevention of the SARS-CoV-2 That Causes COVID-19, 16 VAC 25-220 (Virginia Standard)), at about the same time Virginians were starting to line up to get vaccinated. The permanent Virginia Standard did not offer any distinctions between employer obligations as applied to fully vaccinated versus unvaccinated personnel; and, particularly once Governor Northam rescinded the State of Emergency Executive Order and most mask mandates in May 2021, employers were left wondering what they were obligated to do and whether they had to comply with the seemingly outdated DOLI regulations. In response, Governor Northam recommended to DOLI that the agency modify the Virginia Standard to better align with current CDC guidance and his own Executive Orders.

On August 26, 2021, the Virginia Safety and Health Codes Board met and approved amendments to the Virginia Standard, which amendments were presented to the Governor on August 30. The Governor reviewed and approved the amendments, and most of the amendments became effective on September 8, 2021. The amendments stripped the prior classifications of workplaces as “Very High,” “High,” “Medium,” or “Low” risk and instead made one set of rules applicable to all workplaces, and then imposed some expanded rules for healthcare facilities and other “higher risk” workplaces.[1] Significantly, the amended Virginia Standard makes clear that, if an employer is following all current CDC guidance and recommendations (whether mandatory or not), it will be deemed to be acting in compliance with the Virginia Standard for both compliance investigations and enforcement proceedings brought by DOLI.

While the amended Virginia Standard remains lengthy, the key changes are as follows:

• Policies: All employers must have a COVID-19 policy in place that tracks the requirements of the Virginia Standard, and that policy also must include a method to receive and resolve anonymous complaints of violations of the policy. The policy also must include a requirement that employees report to the employer when they are experiencing symptoms consistent with COVID-19 and when they have been diagnosed with COVID-19. The policy also should contain procedures, following CDC guidelines, for when an employee may return to work post-quarantine.
• Assess Hazards: Employers are required to assess the workplace for hazards that could expose employees to COVID-19 and shall inform employees of methods to self-monitor for symptoms.
• Confirm Vaccination Status: In order to comply with these rules, employers are permitted to require employees to provide their vaccination status, and either may rely on the employee’s representation of his or her vaccination status or may require that employees provide proof of their vaccination status. Vaccination records should be treated as confidential, per EEOC guidance.
• Removal from Workplace: Employers must remove anyone with confirmed or suspected[2] COVID-19 from the workplace, regardless of vaccination status.
• Testing: Employees who are removed from the workplace due to suspected COVID-19 must obtain a COVID-19 PCR test (and the employer must bear the cost of the test). If the test is negative, employees may return to work immediately. If positive, then the employee must stay out of work and quarantine pursuant to the CDC guidelines as applicable either to vaccinated or unvaccinated individuals. Employees who refuse to take a PCR test must be kept out of the workplace until they pass the CDC “time based” test applicable to either vaccinated or unvaccinated employees. The rules provide that employers are not permitted to make decisions on workplace access based on antibody serological testing.
• Confidentiality: An employee’s COVID-19 positive diagnosis is a confidential medical record and should not be shared with anyone who does not need to know, without the employee’s consent. However, within 24 hours of learning of an employee’s positive COVID-19 diagnosis, the employer is obligated to inform anyone who was in direct and prolonged contact with the individual that they may have been exposed to someone who was diagnosed with COVID-19 and should monitor symptoms or test. Employers should not identify the diagnosed employee by name. The employer also must notify the building or facility owner that there was a positive case in the workplace. Yet, the rules state that employers are not required to do contact tracing.
• Reporting: Employers with two or more positive cases in the same workplace within a 14-day period must file an online report with the Virginia Department of Health (“VDH”) and DOLI, available through the VDH website, within 24 hours of the discovery of the second diagnosed case, and must continue to supplement the report if additional cases arise in the same period until the “outbreak” is over.
• Return to Work: An employee’s ability to return to work is dictated by guidance from the VDH, the CDC’s “Isolation Guidance,” and the CDC’s “Return to Work Healthcare Guidance,” which are incorporated by reference into the Virginia Standard.[3]
• Masks and Face Coverings: Employers must provide to employees and must require that all unvaccinated employees, fully vaccinated employees only in CDC-designated areas of substantial or high community transmission[4], or otherwise at-risk employees wear face coverings or surgical masks while indoors that cover the nose and mouth. The only exceptions to the masking requirement are: (1) when the employee is alone in a room, (2) when the employee is actively eating or drinking (provided that unvaccinated people stay at least 6 feet away from any other person while doing so), (3) when it is important to see someone’s mouth (such as communicating with a deaf person), (4) when the employee has a medical condition or disability or sincerely held religious belief that precludes them from wearing a mask, in which case the employer would have to engage in a good faith interactive process to find an accommodation that comports with the employee’s limitations, but still protects the health and safety of the employee and others, or (5) when the employer can demonstrate that use of a facemask would pose a work hazard. Outside of substantial or high-risk transmission areas, fully vaccinated people are not required to wear masks.
• Distancing: Employers must ensure that employees who are not fully vaccinated or who are otherwise at-risk observe physical distancing while on the job and during paid breaks on the employer’s property. Employers must display signs and visual cues to promote physical distancing and decrease worksite density (such as limiting non-employee access to the workplace) to enable distancing. This distancing requirement is specifically noted not to apply to fully vaccinated employees.
• Access to Breakrooms and Common Areas: Unless the employer can control and ensure adequate social distancing in breakrooms and common areas, those areas should be closed to unvaccinated personnel. In order for those common areas to remain accessible to unvaccinated personnel, the employer must post notices requiring unvaccinated employees to observe physical distancing, wash their hands, and clean any shared surfaces that they used. Further, the employer must limit occupancy of the room to ensure that unvaccinated personnel can maintain adequate social distancing. The employer must ensure that handwashing facilities or hand sanitizer is available to employees.
• Work Vehicles: Unvaccinated employees, or fully vaccinated employees in areas of high or substantial community transmission should avoid shared work vehicles if possible. If sharing a vehicle is unavoidable and physical distancing cannot be maintained, unvaccinated employees (or vaccinated employees in high or substantial transmission areas) must wear a mask or face covering, and adequate ventilation should be maintained in the vehicle.
• Cleaning and Sanitizing: As an initial matter, each employer must continue to comply with any VOSH sanitation standards applicable to that employer’s particular industry. In addition, in places accessed by an employee with suspected or confirmed COVID-19, employers must clean and disinfect the employee’s work area prior to allowing other employees to access that area if less than 24 hours has passed since the diagnosed employee was in the space. If more than 24 hours has passed, then simply cleaning is enough. If more than 3 days have passed since the person with COVID-19 was in the work area, then no additional cleaning is required. Common areas and shared tools of employment shall be cleaned at least once a shift, and employers must ensure that employees have access to cleaning products, soap and water, or hand sanitizer.
• Special Requirements for Healthcare Settings: Section 16 VAC 25-220-50 of the amended Virginia Standard provides additional rules that apply only to healthcare settings, and it leaves many of the rules under the prior version of the regulations in effect. These regulations include specific engineering and air-handling systems to ensure proper ventilation, sequestration and isolation of COVID-19 patients, screening of employees for symptoms prior to shifts, implementing physical distancing where possible, and, of course, personal protective equipment such as masks, gloves, and gowns.
• Special Requirements for “Higher Risk” Workplaces: Section 16 VAC 25-220-60 provides additional rules that apply to manufacturing facilities, meat and poultry processing facilities, high-volume retail and grocery businesses, transit, seafood processing facilities, correctional facilities, and other detention centers. These rules include requirements for ventilation, social distancing, and physical barriers where feasible for the unvaccinated (or the fully vaccinated in high or substantial transmission areas), pre-shift screening for symptoms, staggered break and arrival/departure times, and face coverings or masks (and offer masks to any non-employees at the worksite) for unvaccinated employees or other PPE as may be required for the job.
• Infectious Disease Preparedness and Response Plan: All healthcare settings and high-risk industries with 11 or more employees must have completed a workplace hazard assessment and Infectious Disease Preparedness and Response Plan. In addition, any employees working in healthcare settings and any unvaccinated employees in high risk industries with 11 or more employees must receive training on the plan. Details on what the plan must contain can be found in 16 VAC 25-220-70, and the training requirements are detailed in 16 VAC 25-220-80.
• No Discrimination or Retaliation: Just as in the prior iterations of the Virginia Standard, employers are prohibited from taking any action against employees for exercising their rights under the regulations or making a good faith complaint about the employer’s compliance with the rules.

All Virginia employers should review the amended Virginia Standard and ensure that they are following all of the new rules. In addition, because the amendments lean so heavily on CDC guidance, employers should review that guidance, particularly regarding return-to-work rules post COVID-19 diagnosis. Finally, Virginia employers who are federal government contractors or subcontractors and those private employers in Virginia who have 100 or more employees need to review President Biden’s Executive Orders and six-part COVID plan issued last week (see here) and will need to be prepared to weave their compliance with the DOLI Virginia Standard in with the anticipated new OSHA Emergency Standard and Executive Orders.