IT’S HERE! Virginia’s Permanent COVID-19 Standards

IT’S HERE! Virginia’s Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, found at 16VAC25-220.

The permanent standard replaces the Emergency Temporary Standard issued in July 2020. Most of the standard remained the same but there are a few deviations I’m going to highlight here. All Virginia employers must comply with the standard’s requirements. If your company needs assistance, CLEAResources is available to help.

What’s the same?

• Still applies to all employees in the Commonwealth of Virginia
• Still has the same four job task risk levels: Very High, High, Medium and Low
• Employers still must assess the workplace by job task and its level of risk of exposure to COVID-19
• Still has the most requirements for Very High, High, and Medium exposure risk levels – including a written Infectious Disease Preparedness and Response Plan for those risk levels
• Still no employer obligation to do contact tracing
• Still imposes requirements for physical distancing, face coverings, and when applicable, appropriate PPE, sanitation and disinfecting, controlled capacity of common areas, air filtration
• Still requires employers to make notifications of positive cases
• Still requires employee training
• Still requires employers to exclude known and suspected COVID-19 positive employees and third-party business partners from the workplace
• Still must notify employees who were exposed to COVID-19 in the workplace, but without identifying the person who had COVID-19
• Still defines COVID-19 testing as a medical examination that employers must pay for (if an employee’s health insurance pays the entire amount, that is compliant)
• Still prohibits serological (antibody) testing for re-entry to the workplace
• Still prohibits discrimination against employees who raise concerns about safety and health

What are the notable differences?

• Face Coverings: the previous standard required face coverings to have ear loops or ties, which eliminated the ever-popular neck gaiters. The new standard permits neck gaiters so long as they cover the mouth and nose and fit securely under the chin. The chin fit requirement essentially eliminates bandanas as a compliant face covering.
• Notifications:
  • Employers must now notify the Virginia Department of Health within 24 hours of learning that two or more employees have positive COVID tests within 14 days of each other and in those same 14 days, both employees have been at the workplace at some point: notification must include name, date of birth, and contact information of employees testing positive
  • Employers must notify the Virginia Department of Labor and Industry within 14 hours when three or more employees test positive for COVID-19 in a 14-day period.
  • Employers must notify other employers if the other employer’s employees were exposed to COVID-19 in the workplace.

• Return to Work: the previous standard required employers to select one of two methods of return to work, either symptom-based or test-based. The new standard eliminates employer choice and provides for an employee’s return to work based on two categories 1) symptomatic and 2) known positive but asymptomatic.
  • Symptomatic employees must be excluded from the workplace until
    1. no fever for 24 hours, without fever-reducing medications, and
    2. respiratory symptoms have improved, and
    3. 10 or more days have passed since symptoms first started.
  • Known positive but asymptomatic employees must be excluded from the workplace until 10 days after the employees positive RT-PCR test
• Vehicles: when employees must ride in vehicles together, N95 filtering face piece respirators are required. If “adequate supplies” of PPE or respiratory protection are not available, face coverings are mandatory. Windows should be vented and vehicle climate systems set so it does not recirculate air.  Employees should maximize physical separation from each other while in vehicles, so if you have only two employees in a sedan, one would drive and the other should be seated in the back on the passenger side. Vehicles must be equipped with a compliant hand sanitizer.
• Air filtration: engineering control requirements were updated for workplaces with Medium exposure risks, including to increase total air flow and increase air filtration – I recommend looking at the standard itself to see what applies to your particular business
• Certifications: Employers must verify compliance with the hazard assessment by written certification that identifies the workplace that was assessed, the person certifying the assessment, and the date the assessment was conducted (or updated).
• Training: must be conducted for Very High, High, and Medium risk job tasks. Written or oral instructions must be provided for Low risk job tasks. While the training requirements are largely the same as the previous standard, note the following changes:
  • Employees must be informed of the mandatory and non-mandatory provisions of any CDC or other Virginia guidelines an employer is implementing or complying with in lieu of the Permanent Standard;
  • “Advancing age” was added to risk factors for severe illness from COVID-19
  • Employees must be instructed on when and how to PPE including strategies to extend PPE usage when supplies are limited
  • Employers must certify that training has been done, including: name of employee trained, date of training, employee signature (wet or electronic if using a learning management system), name of person conducting training or if online learning, the name of the person or entity who prepared the training materials
  • Re-training is still required under certain circumstances

FOR INFORMATIONAL PURPOSES ONLY — THIS ARTICLE IS NOT LEGAL ADVICE AND IS INTENDED TO CONSTITUTE LEGAL ADVICE.