COVID is Here to Stay
By Amy McDougal, Founder and President of CLEAResources, LLC. Amy helps organizations do right by their shareholders, employees, clients, customers, and communities by mitigating business risks that lead to ethics and compliance failures. She possesses broad experience in advising executive management on compliance risks. She also presents widely on compliance and ethics topics. Amy is a Certified Compliance and Ethics Professional (CCEP) and a credentialed Comprehensive Victim Advocate (CA), has an undergraduate degree from Johns Hopkins, and a law degree from Vanderbilt University. This article about the Virginia COVID permanent standard appears originally on the CLEAResources blog here.
What’s the new permanent standard for COVID prevention in Virginia?
Virginia recently released COVID standards that are going to remain in effect for….well, forever. The state recently released Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, found at 16VAC25-220. This new permanent standard replaces the Emergency Temporary Standard issued in July 2020. Most of the temporary standard remains the same in the permanent version, but there are a few deviations that we’ll cover. All Virginia employers must comply with the permanent standard’s requirements.
What stays the same from the Virginia temporary standard?
Some of the items in the Virginia COVID permanent standard did not change from the original temporary standard. Here are 12 standards that still apply to the permanent standard:
- It applies to all employees in the Commonwealth of Virginia;
- It has the same 4 job task risk levels: Very High, High, Medium and Low;
- Employers must assess the workplace by job task and its level of risk of exposure to COVID-19;
- It has the most requirements for Very High, High, and Medium exposure risk levels – including a written Infectious Disease Preparedness and Response Plan for those risk levels;
- There is no employer obligation to do contact tracing;
- It imposes requirements for physical distancing, face coverings, and when applicable, appropriate PPE, sanitation and disinfecting, controlled capacity of common areas, air filtration;
- It requires employers to make notifications for positive cases;
- Employee training is mandatory;
- It requires employers to exclude known and suspected COVID-19 positive employees and third-party business partners from the workplace;
- Employers must notify employees who were exposed to COVID-19 in the workplace, but without identifying the person infected with COVID-19;
- It defines COVID-19 testing as a medical examination that employers must pay for (if an employee’s health insurance pays the entire amount, that is compliant);
- Serological (antibody) testing for re-entry to the workplace is prohibited;
- Furthermore, it prohibits discrimination against employees who raise concerns about safety and health.
The notable and important differences of the Virginia COVID prevention standard:
We’d like to call out a few notable differences between the Virginia COVID prevention permanent standard and the previous temporary standard. One is the definition of face coverings. The temporary standard required face coverings to have ear loops or ties, which eliminated the ever-popular neck gaiters. The permanent standard permits neck gaiters so long as they cover the mouth and nose and fit securely under the chin. The chin fit requirement essentially eliminates bandanas as a compliant face covering.
Changes to employers’ mandatory notifications:
As part of the permanent standard, here are the new obligations for employers:
- They must now notify the Virginia Department of Health (VDH) within 24 hours of learning that two or more employees have positive COVID tests within 14 days of each other and in those same 14 days, both employees have been at the workplace at some point.
- Notification must include name, date of birth, and contact information of employees testing positive
- They must notify the Virginia Department of Labor and Industry (DOLI) within 14 hours when three or more employees test positive for COVID-19 in a 14-day period.
- They must notify other employers if the other employer’s employees were exposed to COVID-19 in the workplace.
A few other updated provisions:
Returning to work:
- The temporary standard requires employers to select one of two methods of return to work, either symptom-based or test-based. The permanent standard eliminates employer choice and provides for an employee’s return to work based on two categories:
- Symptomatic employees may not come to the workplace until
- 1) no fever for 24 hours, without fever-reducing medications, and
- 2) respiratory symptoms have improved, and
- 3) 10 or more days have passed since symptoms first started.
2) known positive but asymptomatic
- Known positive but asymptomatic employees may not come to the workplace until 10 days after the employees’ positive RT-PCR test.
- When employees must ride in vehicles together, N95 filtering face-piece respirators are mandatory. If “adequate supplies” of PPE or respiratory protection are not available, face coverings are mandatory. Employees must vent the windows and set vehicle climate systems so it does not recirculate air. Employees should maximize physical separation from each other while in vehicles, so if you have only two employees in a sedan, one would drive and the other should be seated in the back on the passenger side. Compliant hand sanitizer must be in every vehicle.
- Engineering control requirements were also updated for workplaces with Medium exposure risks, including to increase total air flow and increase air filtration. We recommend looking at the standard itself to see what applies to your particular business
- Employers must also verify compliance with the hazard assessment by written certification that identifies the workplace that was assessed, the person certifying the assessment, and the date the assessment was conducted (or updated).
- Training must be conducted for Very High, High, and Medium (if 11 or more employees) risk job tasks. Written or oral instructions must also be provided for Low risk job tasks. While the training requirements are largely the same as the temporary standard, note the following changes that are part of the new standard.
- Employees must be informed of the mandatory and non-mandatory provisions of any CDC or other Virginia guidelines an employer is implementing or complying with in lieu of the Permanent Standard;
- “Advancing age” is now a risk factor for severe illness from COVID-19;
- Employees must be instructed on when and how to use PPE including strategies to extend PPE usage when supplies are limited;
- Employers must certify that training has been done, including:
- Name of employee trained, date of training, employee signature (wet or electronic if using a learning management system);
- Name of person conducting training or if online learning;
- And the name of the person or entity who prepared the training materials;
- And lastly: under certain circumstances, re-training is mandatory.
What happens next?
These are just a few of the updated provisions. It is important for every business to review the new standard to ensure compliance with the provisions that apply to your company. Also, the permanent standard applies to EVERY company that has a physical presence or has employees in a workplace in Virginia. Even companies that are not based in Virginia should take note and be aware – as similar standards may be coming to state near you. Virginia is the first state in the nation to establish a permanent standard, but it likely won’t be the last. If your company needs guidance or assistance with COVID standards, please reach out to Amy McDougal at CLEAResources, or Suitless. We are here to serve you!