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The state of Virginia has become the first in the nation to impose COVID-19 workplace safety mandates and penalties. Yet despite Virginia’s attempt to be precise and comprehensive, questions remain.
The Emergency Temporary Standard (ETS) was adopted July 15 in response to an executive order issued by Governor Northam. It will become effective upon publication in a Richmond newspaper, which is expected during the week of July 27. In general, employers will have 60 days to implement the standard once it is in effect. The ETS will expire within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.
Much of the new standard mirrors recommendations that have already been made by CDC and OSHA, but rather than being suggestive they are now mandates. These include wearing masks, proper social distancing, hand hygiene procedures and frequent cleaning of high contact surfaces. Two additional provisions of the Standard raise questions.
First, the Standard prohibits employees who are known or suspected to have contracted COVID-19 from returning to work for 10 days after symptoms first appeared, three days after the recovery of a COVID-19 infection, or until the employee has received two negative tests. Yet there is no indication of how the employee is to be compensated for this time. Under the Families First Coronavirus Relief Act (FFCRA), an employee of a business with 499 or fewer employees is eligible for paid leave if they are unable to work because they are waiting for a diagnosis or have been directed to quarantine by a government official or health care provider. (For workers at firms with more than 500 employees who do not have access to paid leave, FFCRA provides no compensation). An individual who is unable to work due to COVID-19 related reasons could be eligible for Pandemic Unemployment Assistance (PUA). However, this replaces only a small share of a worker’s regular income, and in any event both FFCRA leave and PUA expire on the last day of 2020, potentially leaving compensation for workers who need leave after that date up in the air. Second, businesses can face fines up to $130,000 or even closure should state officials consider the business to not be in compliance. This could devastate small and medium businesses that may have misinterpreted some of the Standard’s requirements while scrambling to stay afloat during the pandemic.
In one of the earlier drafts, employers who could show they had complied with guidance from CDC would have been deemed to be in compliance with the VA standard. After strong pushback from organized labor, that provision was watered down so that only if the CDC guidance is as, or more, protective as the VA requirement will the employer be deemed to be in compliance.
OSHA’s website provides dozens of guidances, FAQs, and webinars educating employers and employees as to what constitutes a safe work environment. Since April 2020, OSHA has performed hundreds of inspections and is continuing to do so. Secretary of Labor Eugene Scalia has encouraged workers to contact OSHA if they feel unsafe in the workplace. Similarly, Governor Northam’s press release announcing the implementation of the Emergency Temporary Standard ends by encouraging individuals who feel unsafe to file a complaint with OSHA.
Virginia’s Emergency Temporary Standard essentially converts flexible recommendations into strict mandates. Employers operating in Virginia will need to become familiar with its provisions to avoid citations and penalties.