New Emergency Temporary Standard Will Apply to Employers in Virginia

This article is the first in a three-part series discussing the New Emergency Temporary Standards for Employers in Virginia.

Click here to read Part 2 and Part 3.

Governor Northam’s executive order (EO 63), tasked the Virginia Safety and Health Codes Board (the Board) – which “promulgates and adopts job safety and health standards, [that] employers and employees are required to comply with…”– to create an Emergency Temporary Standard (ETS) as a result of the COVID-19 pandemic.  The draft is titled 16 VAC 25-220; Emergency Temporary Standard, Infectious Disease Prevention:  SARS-CoV-2 Virus that Causes COVID-19. 

As of July 15, 2020, there were two virtual town hall meetings (one currently under way) where the Board discussed and amended the draft standard.  Staff of the Department of Labor anticipates an effective date for some time in the week July 27, 2020.  However, an exact date “is unknown at this time.”  The standard is meant to supplement existing law, and where it conflicts the stricter law shall apply.  Under the current draft, if an employer complies with CDC “requirements” the employer will be deemed in compliance with the standard.  However, this is confusing as the CDC issues “recommendations” and “guidelines” not “requirements.”

The standard places employers into categories of risk: “very high,” “high,” “medium,” and “lower.”  Although a business may have a general level of risk, it does not exclude the business from a different risk category; multiple categories of risk may exist for a single business or location.  One size does not fit all.  The purpose of the standard is to establish requirements for employers to control, prevent, and mitigate the spread of the virus among employees and other persons (e.g. customers). 

            Summarizing the Categories of Risk [1]:

• A “Very High” risk of exposure is where the place of employment or task has high potential for employee exposure to known or suspected sources of the virus.
• A “High” risk of exposure is where the place of employment or task has high potential for employee exposure inside six feet with known or suspected sources of the virus, or person known or suspected to be infected, and is not otherwise classified as “very high.”
• A “Medium” risk of exposure is where the place of employment or task requires more than minimal occupational contact inside six feet with other employees, other persons, or the general public who may be infected with the virus but are not known or suspected to be infected, and is not classified as “very high” or “high.”
• A “Lower” risk of exposure is where the place of employment or task has minimal occupational contact with other employees, other persons, or the general public, such as in an office building setting; or are able to achieve minimal occupational contact through the implementation of engineering, administrative and work practice controls (defined in current draft), and is not classified as “very high,” “high,” or “medium,” and does not require contact inside six feet.

Each Risk Category includes different levels of controls for compliance with the standard.  For a full reading of the current draft standard:  https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\92\31089\Agenda_DOLI_31089_v3.pdf

[1] 16 VAC 25-220.