Did Virginia Just Start A Workplace Safety Trend That Will Spread To 21 Other States?

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Virginia, as one of 22 states with a federally approved Occupational Safety and Health Administration (“OSHA”) state plan (a workplace safety and health program operated by the individual state which is approved and monitored by OSHA for effectiveness), has taken the first step in a possible new state response trend by adopting a new emergency workplace safety standard that goes into effect today. The safety standard is meant to “supplement and enhance” current occupational safety and health law, and while its application is limited to employers subject to Virginia’s Occupational Health and Safety Program, the new standards may provide a roadmap for other state safety agencies to adopt their own mandatory safety standards.

Employers subject to the standard are required to implement COVID-19 employee training programs. Employers are given 30 to 60 days to implement their training programs, which must cover the emergency standard’s requirements, facts about COVID-19 symptoms and means of transmission, applicable recommendations from the Centers for Disease Control and Prevention (“CDC”) or state health authorities, exposure risk factors, safe workplace practices, personal protection equipment (“PPE”), anti-discrimination protections, and the employers’ Preparedness and Response Plans.

The standard also mandates a range of workplace safety practices, which in many respects align with current guidance provided by OSHA and the CDC. Among other things, the standard requires employers to: establish Infectious Disease Preparedness and Response Plans; categorize each position in employers’ workforces as subject to very high, high, medium and lower risk of COVID-19 exposure (and to implement associated engineering and administrative controls); establish policies on handling symptomatic employees and asymptomatic employees suspected of being infected with COVID-19; and establish return-to-work procedures, contact tracing and virus testing protocols, and workplace sanitization measures.

Consistent with recent CDC and Equal Employment Opportunity Commission (“EEOC”) guidance, as discussed, the use of antibody tests in return-to-work programs for employees who previously suspected of having or tested positive for COVID-19 is expressly prohibited.

Finally, the standard offers protections for employees who refuse to perform work or enter a workplace that the employee feels is unsafe, and notes that employers that fail to adhere to applicable whistleblowing requirements may be liable for retaliation if they terminate or discipline those employees as a result of their engaging in protected activity.

Employers subject to the emergency standard should closely read through the program to ensure that they are adhering to all new safety obligations, and employers in other states with federally approved OSHA state plans should stay on the lookout for the adoption of similar standards.

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