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Virginia Adopts First Permanent Workplace Virus Rule in U.S. (1)

Jan. 13, 2021, 10:43 PMUpdated: Jan. 13, 2021, 11:52 PM

Virginia became the first state in the country to enact a permanent rule requiring employers to take steps to protect workers from Covid-19 infection on the job.

The Virginia Safety and Health Codes Board voted 9-4 (with one abstention) to approve the measure Wednesday, ensuring that protections for workers will continue when the state’s emergency temporary standard expires Jan. 26.

Virginia was the first U.S. state to enact a temporary Covid-19 emergency workplace rule last year, sparking a trend of states taking similar action in the absence of such a move by the federal Occupational Safety and Health Administration.

The permanent rule largely mirrors the temporary standard, which groups jobs into categories of high, medium, and low exposure risk. It continues a requirement for employers to create a workplace infection protection program and to train workers on how to comply. In addition, the standard sets mandates for on-the-job social distancing, cleaning, and wearing of face masks.

The permanent rule’s effective date had yet to be determined, but it’s expected to be implemented before Jan. 26. The new rule is poised to take effect following a review by the office of Gov. Ralph Northam (D) and publication in a Richmond, Va., print newspaper.

‘A Lot of Questions’

Employer representatives had sought to include a sunset provision that would have terminated the standard when the governor ends the state’s Covid-19 state of emergency. But the board majority rejected the effort out of concerns that a permanent rule was needed to prevent Covid-19 outbreaks among workers who choose not to be vaccinated.

The board, which has 14 members, is split between worker, employer, and occupational safety and health professionals.

Employer-side board members pointed out that the permanent rule’s proposed text went through several changes in recent weeks, giving them little time to review provisions sought by state agencies or the economic impact of each adjustment.

“There just seem to be a lot of questions by stakeholders that we don’t have the answers to at this point,” said Courtney Malveaux, an employer-side board member and attorney with Jackson Lewis P.C. in Richmond.

Jay Withrow, an attorney with Virginia Occupational Safety and Health, said typical review times weren’t possible because of the state’s six-month statutory limit to draft and enact a permanent rule that replaces an emergency temporary standard.

“The level of detail may not be acceptable to everyone,” Withrow acknowledged.

Locking in Mandates

Like under the temporary measure, employers with workers in high-risk jobs, such as hospital nurses, have to meet stricter requirements, including mandates for ventilation systems. The permanent rule added prison guards to the list of high-hazard jobs.

The board also approved several changes to align the permanent measure with Virginia Department of Health or federal Centers for Disease Control and Prevention policies.

For example, the emergency rule required employers to contact the state health department whenever an employee was confirmed to be ill with Covid-19. At the health department’s request, the notification mandate was changed so that an employer must contact the state when it records at least two cases within 14 days—the health department’s definition of an outbreak.

California, Michigan, and Oregon have enacted comprehensive Covid-19 standards in the months since Virginia’s first-in-the-nation temporary rulemaking. Nevada and Washington use a mix of executive orders and state occupational safety and health rules to set protection requirements.

Virginia Occupational Safety and Health has used the temporary standard sparingly to cite employers. Of the 51 Covid-19 inspections it performed in 2020 that led to citations being issued, the standard was cited only five times, state records show. Other citations in those instances were for violating long-standing rules, such as those for respiratory protection or to safeguard workers against dangerous chemicals.

Withrow said one reason comparatively few Covid-19 rule violations were cited to date is that proposed citations involving the standard must be reviewed by state Occupational Safety and Health headquarters staff, a process that delays issuance of citations.

(Updated with new reporting, beginning in the 5th paragraph.)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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