On July 15, 2020, the Virginia Safety and Health Codes Board approved an emergency workplace standard to curb the spread of COVID-19, making Virginia the first state in the country to do so. This standard applies to all Virginia employers and places of employment under the jurisdiction of the Virginia Occupational Health and Safety Administration. These regulations went into effect on July 27, 2020.
Pursuant to 16 VAC 25-220, Emergency Temporary Standard, employers will be required to:
- Mandate physical distancing on the job, i.e., “keeping space between yourself and other persons while conducting work-related activities inside and outside of the physical establishment by staying at least 6 feet from other persons. Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall constitutes physical distancing from an employee or other person stationed on the other side of the wall.”
- Clean and disinfect all common spaces, including bathrooms, frequently touched surfaces, and doors at the end of each shift, and where feasible, disinfect shared tools, equipment, and vehicles prior to transfer from one employee to another.
- Provide personal protective equipment to employees and ensure its proper use in accordance with VOSH laws, standards, and regulations applicable to personal protective equipment, including respiratory protection equipment when engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection.
- Assess the workplace for hazards and job tasks that could potentially expose employees to SARS-CoV-2/COVID-19 and ensure compliance with the applicable standards for “very high,” “high,” “medium,” or “lower” risk levels of exposure.
- Inform employees of methods of self-monitoring and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of forthcoming illness.
- Notify their own employees who were at a worksite with an employee who subsequently tested positive for active COVID-19, other employers whose employees were also present, and the building/facility owner of the affected site within 24 hours of discovery of possible exposure.
- Ensure that employees are aware of sick leave policies and that sick leave policies are flexible and consistent with public health guidance and applicable law, including but not limited to the Families First Coronavirus Response Act.
In addition, the emergency workplace standard prohibits employers from:
- Discriminating against or discharging an employee because the employee has exercised rights on their own behalf or for others under the safety and health provisions of the Emergency Temporary Standard, Title 40.1 of the Virginia Code, or implementing regulations under 16 VAC 25-6-110.
- Discriminating against or discharging an employee because that employee has voluntarily provided and worn their own personal protective equipment, as long as that equipment does not create an increased hazard for the employee or a serious hazard for other employees.
- Discriminating against or discharging an employee who has raised a reasonable concern about SARS-CoV-2/COVID-19 infection control to the employer, the employer’s agent, other employees, or a government agency, or the public through print, online, social, or any other media.
Employers can be fined up to $13,000 for initial violations, but willful, repeat violators could be fined up to $130,000.
The United States Department of Labor Occupational Safety and Health Administration (OSHA) has issued guidance to employers to protect workers but has not adopted a binding rule. OSHA provided guidance to employers on preventing worker exposure to SARS-CoV-2/COVID-19 in March 2020, and in June 2020 it released guidance on returning to work. The guidance on returning to work states that employers should continue to be flexible and allow employees to work remotely when possible, use alternative business operations such as curbside pickup to serve customers if feasible, implement strategies for basic hygiene and disinfection at work, encourage social distancing, apply procedures for identification and isolation of sick employees, and provide employee training on the various phases of reopening and necessary precautions. Further, employers should not retaliate against employees for adhering to OSHA’s safety guidelines or raising workplace health and safety concerns. Though these guidelines are not binding, employers are bound by the General Duty Clause of the Occupational Safety and Health Act of 1970, which requires that they provide a safe workplace free from serious hazards.
Virginia’s recently-enacted whistleblower protection law, which went into effect July 1, 2020, will protect workers who disclose violations of the emergency workplace standard. In particular, the new Virginia whistleblower protection law provides a private right of action for an employee who suffers retaliation for “in good faith report[ing] a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official.” Va. Code § 40.1-27.3(A)(1).
The statute proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. Id. at § 40.1-27.3(A).
A prevailing whistleblower under Virginia’s whistleblower protection law can obtain various remedies, including:
- An injunction to restrain a continuing violation;
- Reinstatement to the same or an equivalent position held before the employer took the retaliatory action; and/or
- Compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorneys’ fees and costs. at § 40.1-27.3(C).