Virginia Employees Protected From Retaliation for Raising Concerns About COVID-19 Workplace Safety Issues

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:

In addition, the emergency workplace standard prohibits employers from:

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:

To find out if you have a whistleblower retaliation claim in Virginia, contact Dallas Hammer at (571) 288-1309 or Jason Zuckerman at (202) 262-8959 to schedule a confidential consultation.

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