Virginia Becomes First State To Adopt COVID-19 Workplace Safety Mandates

On Wednesday, Virginia became the first state to enact mandated COVID-19 workplace safety measures. Virginia’s “Emergency Temporary Standard” (16 VAC 25-220) will apply to all Virginia businesses regardless of size and is anticipated to go into effect the week of July 27 (under state procedure it will go into effect when it is published in a Richmond newspaper).

Unless further modified, the requirements will remain in effect until six months after the end of the Governor’s declared state of emergency.

Many parts of the Temporary Standard reflect and incorporate the advice and best practices being promoted by the Centers for Disease Control (CDC) and other public health agencies and experts – however, in Virginia employers will now face potential penalties for non-compliance.

These provisions include requiring employers to have a system in place to identify and exclude symptomatic employees and to provide for their safe return after a COVID infection, requiring employers to notify certain groups of people after an employee has tested positive for COVID, and requiring employers to enforce specific physical distancing, PPE use and cleaning procedures.

Virginia employers that are operating what are classified as a medium or high-risk work environments will also need to develop an infectious disease preparedness and response plan within 60 days of the Standard going into effect.

The Standard prohibits employers from discriminating or taking action against an employee who raises a “reasonable concern” regarding the spread of COVID-19 – whether the concern is raised to the employer or a third party (such as a state or federal agency or the media).

While Virginia is the first state to make this move, it is not anticipated to be the last. Oregon has announced that it has a similar plan is in the works which will be reviewed later this month and other states are likely to follow suit.

These efforts are largely seen as a response to the fact that, while OSHA has issued discretionary guidance, it has not answered calls by employee groups to issue any COVID-19 specific mandatory rules.

In the face of state workplace safety mandates, many employers may be concerned about penalties and multi-state compliance issues.

However, beyond a general interest in protecting public health and preventing further shutdowns, detailed safety requirements like Virginia’s may have a bright side for businesses when it comes to protecting against liability.

An enormous concern for businesses as they reopen has been the potential for COVID-19-related claims by employees and third parties. It is difficult to predict exactly what form these claims may take.

However, for a claim like negligence, it is easy to imagine how difficult it would be for a claimant to argue that a business failed to take necessary and appropriate measures to reduce the risks of COVID-19 where the business was in full compliance with detailed government requirements intended to do just that.

Further, on the issue of business liability, U.S. Senate Majority Leader McConnell said this week that the Senate’s next COVID-19 related legislation will include some form of liability shield for COVID-19 claims.

This is a priority that PMAA has supported and advocated for.

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