The Commonwealth of Virginia became the first state in the country to enact enforceable emergency temporary safety standards to protect workers from COVID-19. The standards are intended to “control, prevent, and mitigate the spread of [COVID-19] to and among employees and employers.”
Unlike the federal guidance issued by the U.S. Occupational Safety and Health Administration (OSHA), these new Virginia standards are mandatory, not optional. Many employers across the nation disregarded the optional OSHA recommendations, and thereby exposed their employees and customers to unreasonable risks of exposure to COVID-19.
Virginia is now seeking to establish permanent safety standards to replace these temporary standards.
Virginia Employers Must Establish Policies and Procedures to Protect Workers from COVID-19
The Virginia standards require Virginia employers to take certain actions to protect employees.
For example, employers must assess their workplace for hazards and job tasks that can potentially expose employees to COVID-19. Employers must classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of the standard.
Employers must encourage employees to self-monitor for signs and symptoms of COVID-19 if employees suspect possible exposure or are experiencing signs of an oncoming illness.
Employers must develop and implement policies and procedures for employees to report when employees are experiencing symptoms consistent with COVID-19.
Employers must not permit employees or other persons known or suspected to be infected with COVID-19 to report to or remain at the work site or engage in work at a customer or client location until cleared for return to work. But they can allow such employees to telework.
Virginia Employers Must Take Certain Actions to Control the Spread of COVID-19 in the Workplace
The standards set out differing requirements based on the degree of risk posed by the particular position or job tasks being performed.
The standards require employers to enforce social distancing measures and face coverings for workers who interact with customers, and when social distancing is not possible. Employees must have frequent access to hand washing stations or hand sanitizer, and high-contact surfaces must be cleaned frequently.
Employers must notify all employees within 24 hours of a co-worker testing positive for COVID-19, and must prohibit employees known or suspected of having COVID-19 from returning to work for 10 days or until they have two consecutive negative tests.
Employers with job tasks or hazards classified as “very high” or “high” must develop and implement a written disease preparedness and response plan.
The Virginia Occupational Safety and Health (VOSH) program compliance safety and health officers are responsible for enforcing the new emergency standards, with maximum penalties ranging from $13,494 to $134,937 per violation, and can even shut down an employer’s operations if required to protect employees’ safety.
What Should Virginia Employees Do if Their Employer Refuses to Follow the Safety Standards and Protect Workers from COVID-19 ?
The new Virginia standards, in combination with the new protections for Virginia whistleblowers passed in July 2020, provide some guidance for employees who work for an employer who refuses to follow the emergency temporary standards for COVID-19.
An employee who has a good-faith belief that her employer is violating the mandatory standard could report that violation to a supervisor or government body, such as the Virginia Department of Labor and Industry. The new whistleblower protections have not been applied in Virginia courts, but it is likely that would protect an employee who reported such a violation, and would protect good faith whistleblowers from threats of retaliation and actual retaliation, including demotions, pay cuts, and termination.
An employee whose employer retaliated against her for blowing the whistle on the employer’s illegal conduct can seek relief from the circuit courts in the Commonwealth of Virginia, and can obtain reinstatement, back pay, and the reasonable attorneys’ fees and costs associated with bringing a lawsuit to defend these rights.
The safest course of action for any Virginia employee who is concerned that her employer is violating Virginia’s mandatory COVID-19 emergency standards is to consult first with a Virginia employment attorney before making any disclosures about the suspected violations.
Virginia employers are required to help protect workers from COVID-19, but those protections may not be implemented until the workers themselves take action.