Archive of the Virginia Standard For Infectious Disease Prevention For COVID-19 – Frequently Asked Questions

The standard applies to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the VOSH program as described in §§ 16VAC25-60-20 and 16VAC25-60-30, including state and local government employers and employees.

NOTE: Federal OSHA retains jurisdiction over private sector maritime activities in Virginia. VOSH has jurisdiction of state and local government maritime related activities only.

No. Section 10.C states that the standard is designed to supplement and enhance existing VOSH laws, rules, regulations, and standards applicable directly or indirectly to SARS-CoV-2 virus or COVID-19 disease-related hazards such as, but not limited to:

• personal protective equipment,
• respiratory protective equipment,
• sanitation,
• access to employee exposure and medical records,
• occupational exposure to hazardous chemicals in laboratories,
• hazard communication,
• Va. Code §40.1-51.1.A

Should the standard conflict with an existing VOSH rule, regulation, or standard, the more stringent requirement from an occupational safety and health hazard prevention standpoint shall apply.

Governor’s Executive Order 79 and Order of Public Health Emergency Ten ended the Governor’s commonsense public health restrictions due to the novel coronavirus (COVID-19), so the Virginia standard applies to all Virginia employers and employees covered by VOSH jurisdiction.

Please also note that existing VOSH standards and regulations that were in place and applicable to covered employers and employees prior to the COVID-19 pandemic may be used to address SARS-CoV-2 and COVID-19 workplace hazards in an enforcement setting. VOSH is required by the OSH Act of 1970 and OSHA regulations to be “at least as effective as” federal OSHA. VOSH generally follows OSHA interpretations of federal identical standards and regulations.

No, provided that they “serve without pay.” Virginia Occupational Safety and Health (VOSH) laws, standards, and regulations do not apply to volunteer fire fighters or members of volunteer rescue squads who “serve without pay.” Section 16 VAC 25-60-10[1] defines a “public employee” as:

“Public employee” means any employee of a public employer. Volunteer members of volunteer fire departments, pursuant to §27-42[2] of the Code of Virginia, members of volunteer rescue squads who serve without pay, and other volunteers pursuant to the Virginia State Government Volunteers Act [§2.2-3600[3] et. seq.] are not public employees….

In determining whether volunteer fire fighters or volunteer rescue squad members are covered by VOSH, the question of whether they “serve without pay” is looked at on a case by case basis. Volunteers are not paid a salary but do receive some benefits from their organization. If the benefits the volunteer receives are authorized by the Code of Virginia they are not considered as pay and those benefits would not bring the volunteer under VOSH coverage. Examples of benefits that are authorized by the Code of Virginia include, but are not limited to, meals, lodging, liability insurance coverage, etc. Receipt of such statutorily defined benefits would not be considered pay.

However, for instances where “benefits” go beyond or are different from those listed in the Code of Virginia, VOSH will make an independent determination on whether the additional benefits amount to “pay.” For example, if each volunteer received trip money per call of $50 and the most it could cost to get from one end of the service area to the other is $20 then the additional amount might be considered pay.

Please call Rob Field, DOLI Hearing and Legal Services Officer, at (804) 786-4777 if you have additional questions.

Yes. 16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this chapter also includes, but is not limited to, <strong>temporary employees</strong> and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.”

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the standard are the same as for any other VOSH or OSHA standard. See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

Yes. The standard applies to Virginia public school and municipal employees in the same manner that it applies to other employers under the jurisdiction of the VOSH program.

No. Here is a link to OSHA’s website that explains VOSH jurisdiction:

https://www.osha.gov/stateplans/va

VOSH does not generally cover private contractors working at federal installations (with the exception of those engaged in asbestos removal):

“The Virginia State Plan applies to private sector workplaces in the state with the exception of: ….

1. Employment at worksites located within federal military facilities as well as on other federal enclaves where civil jurisdiction has been ceded by the state to the federal government.”

With regard to temporary employees working for the federal government, any exposures to COVID-19 they may experience at the federal installation would also fall under federal OSHA jurisdiction.

Generally speaking, VOSH does not have jurisdiction over mines and quarries, which are regulated by the Virginia Department of Mines, Minerals and Energy (DMME). At the federal level, the Mine Safety and Health Administration (MSHA) and OSHA entered into an Interagency Agreement in 1980, which VOSH follows when determining jurisdiction issues involving mines and quarries – there are lines of demarcation for when MSHA/DMME jurisdiction ends and OSHA/VOSH jurisdiction begins. The Agreement can be found at this link:

https://www.osha.gov/enforcement/directives/cpl-02-00-042-0

The standard defines “fully vaccinated” in 16VAC25-220-30:

“Fully vaccinated” means a person is considered fully vaccinated for COVID-19 more than or equal to two weeks after they have received the second dose in a two-dose series, or more than or equal to two weeks after they have received a single-dose vaccine, provided such vaccine has been FDA-approved, or authorized by an FDA EUA, or authorized for emergency use by the World Health Organization (WHO).

NOTE: Once manufacturers establish guidelines for their vaccines remaining current (i.e., what is the estimated duration of immunity offered by a particular vaccine), the definition of “fully vaccinated” may change and could impact compliance issues with the standard.

Section 10.E was revised by the Safety and Health Codes Board on August 26, 2021 and took effect on September 8, 2021, and provides that:

1. To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this chapter, the employer’s actions shall be considered in compliance with this standard. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

The intent of 16VAC25-220-10.E is to give employers the option to either comply with the requirements of a provision of the VOSH Standard or demonstrate as an alternative that they have actually complied with the mandatory and non-mandatory “recommendations” and “considerations” in a CDC publication addressing the same hazards, issues, requirements, etc., that are also addressed in a specific provision of the VOSH Standard.

NOTE: The VOSH Standard does not require employers to comply with any CDC publication language that is solely directed at assuring the safety and health of the general public. The focus of the VOSH Standard is employee safety and health, and the focus of 10.E is only CDC publications’ language that addresses specific provisions related to employee safety and health, occupationally-related hazards, issues, mitigation efforts, etc.

If the CDC publication the employer is relying on does not address requirements that are contained in the VOSH Standard (e.g., employee training, air handling systems, notifications to the Department and VDH of COVID-19 outbreaks, etc.), then the employer must comply with the VOSH Standard.

If the CDC publication the employer is relying on has been archived and is no longer being updated, it is not considered “current” under 10.E and it cannot be relied upon under by the employer in lieu of complying with the VOSH Standard (e.g., https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html, last updated May 7, 2021). Also, in cases where a CDC publication has become outdated without specifically being archived (e.g., when the CDC updated guidance on July 27, 2021 for fully vaccinated people to continue to wear face coverings indoors in areas of substantial or high community transmission), the most recent guidance by the CDC in other updated publications will be what governs.

An employer will not be subject to citation or penalty if they comply with the requirements of the VOSH Standard, even if a CDC publication were to include a more stringent requirement or “recommendation” than is provided for in the VOSH Standard.

As noted above, in order for an employer to take advantage of 10.E, it has to demonstrate that it is actually complying with language in CDC publications that could be considered both “mandatory” (e.g., “shall”, “will”, etc.) and “non-mandatory” (“it is recommended that”, “should”, “may”, “encouraged”, etc.). In other words, an employer would have to comply with a CDC “recommended” practice even if the CDC publication doesn’t “require” it.

As provide in 10.E, the Commissioner of Labor and Industry will consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

Here is an example of application of 10.E to language in Section 3 of the current CDC Guidance for Institutions of Higher Education (IHEs) (https://www.cdc.gov/coronavirus/2019-ncov/community/colleges-universities/considerations.html#section3, updates as of July 23, 2021):

“Administrators should encourage people who are not fully vaccinated and those who might need to take extra precautions to wear a mask consistently and correctly:

Indoors. Mask use is recommended for people who are not fully vaccinated including children.

Answer: The Department considers use of the phrases “Administrators should encourage” and “Mask use is recommended” to be non-mandatory language that must be actually complied with under 10.E. This means the phrases will be read as “Administrators shall require” and “Mask use is required.”

Accordingly, for an employer to comply with the above language and take advantage of 10.E, IHE employees who are not fully vaccinated must wear face coverings.

The Department’s interpretation of 10.E and language in CDC publications will otherwise follow normal rules of regulatory/statutory construction. For instance, if the CDC publication language offers options for an employer to address a hazard, issue, etc., that is also addressed by the VOSH Standard (e.g., the employer “should” do “this”, or “that”, or “the other”), then the employer is required to implement at least one of the options in order for §10.E to apply.

No. Section 10.F specifically provides that “Nothing in the standard shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.”

It is the employer’s responsibility to identify CDC guidelines (both mandatory and non-mandatory) that address a comparable provision in the Virginia standard. VOSH will not be going through a separate process of identifying CDC guidelines it considers are comparable to individual provisions of the standard.

NOTE: For further information, see answer above to question: “If an employer complies with CDC guidance for its industry, do they have to comply with the standard?”

No. The standard is silent on the issue of vaccines in the workplace.

The Department is not aware of any Virginia law, standard or regulation that prohibits employers from asking employees if they have received the COVID-19 vaccine and are fully vaccinated, and if so, requiring employees to show proof of full vaccination.

HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) applies to “covered entities” and “business associates,” and in most cases does not apply to employers. Accordingly, the patient privacy protections contained in HIPAA do not apply to employers who ask employees if they have received the COVID-19 vaccine and are fully vaccinated or require employees to show proof of full vaccination. For further information on HIPAA see: https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html

EEOC

The Equal Employment Opportunity Commission (EEOC) indicates that employers may require employees to show proof of full vaccination, but notes certain issues associated with such a mandate:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (December 16, 2020)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The CDC notes the following with regard to employer vaccine mandates:

Whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof.

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html#:~:text=Employer%20Vaccine%20Mandates%20and%20Proof%20of%20Vaccination&text=If%20an%20employer%20requires%20employees,as%20part%20of%20the%20proof.

The Department is not aware of any Virginia law, standard or regulation that prohibits employers from implementing a COVID-19 vaccine mandate. Private employers should seek legal counsel for additional details.

EEOC

The Equal Employment Opportunity Commission (EEOC) indicates that employers may require employees to be vaccinated, but notes certain issues associated with such a mandate:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (December 16, 2020)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the FMLA or under the employer’s policies.

See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.
Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

No. The Virginia Standard as amended effective September 8, 2021, has different requirements for those employees who are fully vaccinated and those who are not. While it does not require employers to verify the vaccination status of each employee, if an employer chooses not to do so, then they must apply the Virginia Standard to its employees as if the employees were not fully vaccinated (e.g., 16VAC25-220-40.G requires “….Employers shall provide and require employees that are not fully vaccinated….to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE.”)

Please note that if you do inquire about vaccination status, 16VAQC25-220-40.B.1 provides:

Employers may rely on an employee’s representation of being fully vaccinated, as defined by this chapter without requiring proof of vaccination; however, nothing in this chapter shall be construed to preclude an employer from requiring proof that an employee is fully vaccinated.

Should VOSH conduct an inspection of an employer where it is alleged that violations of 16VAC25-220 occurred because one or more exposed employees were not fully vaccinated, no citation shall issue with regard to an exposed employee where the employer can demonstrate that the employee was fully vaccinated at the time of exposure.

Also, please note that DOLI has an FAQ on the question: “CAN MY EMPLOYER LEGALLY ASK IF I RECEIVED THE COVID-19 VACCINE AND AM FULLY VACCINATED?” DOLI’s FAQ webpage can be found at: https://doli.dev.sitevision.com/final-covid-19-standard-frequently-asked-questions/

The Virginia Workers’ Compensation Commission (https://workcomp.virginia.gov/) has an FAQ on this topic:

10. If an employee was required to get the COVID-19 vaccine by their employer and has an adverse reaction, how should that be reported to the commission via EDI?
When submitting a First Report of Injury:

Nature of Injury Code (DN0035)

• Do not use code 83 (COVID-19) as that is only used to report COVID-19 cases.
• For all other injuries involving COVID-19, including adverse reactions to a vaccine, should be coded in accordance with the remaining nature of injury codes based on the injury/illness being claimed.
• Cause of Injury Code (DN0037) should be populated with code 83 (pandemic) for all injuries involving or related to COVID-19 including adverse reactions to a COVID-19 vaccination.
• Please be sure to indicate in the Accident/Injury narrative field that the Employee suffered reaction to the COVID-19 vaccine, which was a requirement of the employer.

https://workcomp.virginia.gov/sites/default/files/documents/COVID-19-Statistics-FAQs-Data- Reported.pdf

Federal OSHA has a Frequently Asked Question (FAQ) on this issue:

Are adverse reactions to the COVID-19 vaccine recordable on the OSHA recordkeeping log?

DOL and OSHA, as well as other federal agencies, are working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts. As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.

https://www.osha.gov/coronavirus/faqs#vaccine

The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first. During the pendency of the ETS, the Virginia standard will not apply to those industries. When the ETS lapses, Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

16VAC25-220-10.E provides in part:

“To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard the employer’s actions shall be considered in compliance with this chapter. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter….”

In order for an employer to take advantage of the language in 16VAC25-220-10.E to be “considered in compliance with” a provision of the standard (for instance, in the context of a VOSH inspection), the employer will have to inform VOSH what CDC guidelines they are complying with that they contend addresses the same issue as a provision in the standard.

First, when you use the term “risk assessment” we are assuming you are referring to the requirement in 16VAC25-220-40.B.1 that:

1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

Second, with regard to your specific question about performing a risk assessment for each hospital, you would need to provide information on which CDC guidelines you are referring to and indicate whether those guidelines provided for any sort of risk assessment similar to that provided by 16VAC25-40.B.1.

NOTE: For further information, see answer above to question: “If an employer complies with CDC guidance for its industry, do they have to comply with the standard?”

If the CDC publication the employer is relying on does not address requirements that are contained in the VOSH Standard (e.g., employee training, air handling systems, notifications to the Department and VDH of COVID-19 outbreaks, etc.), then the employer must comply with the VOSH Standard.

If the CDC publication the employer is relying on has been archived and is no longer being updated, it is not considered current under 10.E and it cannot be relied upon under by the employer in lieu of complying with the VOSH Standard (e.g., <a href=”https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html”>https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html</a>, last updated May 7, 2021). Also, in cases where a CDC publication has become outdated without specifically being archived (e.g., when the CDC updated guidance on July 27, 2021 for fully vaccinated people to continue to wear face coverings indoors in areas of substantial or high community transmission), the most recent guidance by the CDC in other updated publications will be what governs.

Third, in the context of your statement that you are dealing with multiple hospitals, if you have consistent types of job tasks across those hospitals, we note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.” An employer may prepare a risk assessment that provides corporate wide classification of hazards and job tasks for its Virginia locations that could meet the requirements of the standard.

NOTE: Hospitals are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

However, please note that if an individual hospital had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific hospital.

The individual hospitals would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

To determine appropriate protections for employees from the SARS-CoV-2 virus under the standard, employers must first:

….assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes. 16VAC25-220-40.B.1.

NOTE: Automotive sales and repair businesses are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

16VAC25-220-60 was amended by the Safety and Health Codes Board on August 26, 2021 with an effective date of September 8, 2021 to apply to “higher risk workplaces” which include, but are not limited to, manufacturing, meat and poultry processing, high-volume retail and grocery, transit, seafood processing, correctional facilities, jails, detention centers, and juvenile detention centers.

You discussed in your letter that:

• The natural layout of our locations lends our work spaces to be more than six feet of social (physical) distancing.
• Our service bays are spaced farther apart than six feet, and because of this, our employees performing their required duties are not in contact with other employees or customers.
• These businesses are offering numerous options so their customers have minimal to no contact with the employees of the store.
• Concierge pickup and delivery services of the vehicle, after hour exterior key drop services, complimentary
• Uber rides home or to work, phone payments and more insure a safe experience for our member’s customers with little or no contact.
• In addition, our member store employees wear face coverings and gloves, and exterior surfaces are continuously cleaned and sanitized.
• The customer’s vehicle is sanitized before being returned.

If your member’s employees are able to maintain physical distancing of 6 feet from other persons (employees, customers, etc.) at all times, then it does not appear that they fall into the higher risk workplace category. However, your members must comply with the mandatory requirements for all employers contained in 16VAC25-220-40.

VOSH encourages you to suggest your members consider working with our Consultation Program for small employers (up to 250 employees at one site or 500 nationwide) which is available to provide free, confidential consultation and training services. The program also has 3 consultants that are available as demand allows to work with large employers.

https://doli.dev.sitevision.com/vosh-programs/consultation/

The standard applies to public and private institutions of higher education in the same manner that it applies to other employers under the jurisdiction of the VOSH program.

The standard applies to public school divisions and private schools in the same manner that it applies to other employers under the jurisdiction of the VOSH program.

The revised standard took effect on September 8, 2021.

The requirements for 16VAC25-220-70 shall take effect on October 8, 2021.

The training requirements in 16VAC25-220-80 shall take effect on November 8, 2021.

Definitions are provided for the following terms in §30:

Administrative Control, Aerosol-generating procedure, Airborne infection isolation room (AIIR), Ambulatory care, ASTM, Asymptomatic, Building/facility owner, Cleaning, Community transmission, Confirmed COVID-19, COVID-19, COVID-19 positive and confirmed COVID-19, Disinfecting, Duration and frequency of employee exposure, Economic feasibility, Elastomeric respirator, Elimination, Employee, Engineering control, Face covering, Face mask, Face shield, Feasible, Filtering facepiece, Fully vaccinated, Hand sanitizer, HIPAA, Health care services, Health care support services, Occupational exposure, Otherwise at-risk, Personal protective equipment, Physical distancing, Powered air-purifying respirator” or “PAPR, Respirator, Respirator user, SARS-CoV-2, Severely immunocompromised, Signs of COVID-19, Surgical mask, Suspected COVID-19, Symptomatic, Technical feasibility, USBC, Vaccine, VDH, VOSH, and Work practice control.

There are a number of different reasons for having a stricter standard for employees than patrons/customers, regardless of the industry.

First, the OSH Act of 1970 and Virginia laws, standards and regulations require employers to provide a safe and health workplace to employees. While providing for and enforcing workplace safety and health requirements indirectly benefits members of the general public, the primary focus of those laws is employee safety and health.

Second, customers or patrons (See Governor’s Executive Order 79 for face covering guidelines for members of the general public, <a href=”https://www.governor.virginia.gov/executive-actions/”>https://www.governor.virginia.gov/executive-actions/</a>) are at a business voluntarily while employees are required to be there in order to keep their jobs. Customers can “assume the risk” of being potentially exposed to the virus, while no employee should be required or permitted to do so.

Third, customers can limit the length of their exposure at a particular business and can limit the number of businesses they visit on a daily basis to reduce the risk of exposure, while employees are required to be present for the full period of their work shift. It is appropriate to have a stricter face covering requirement for employees who are potentially exposed to the virus for an 8 hour or 10 hour or 12 hour shift, depending on the industry, as opposed to a customer or patron who can limit their exposure to 1 or 2 hours a day simply by being selective about where they go and for how long.

Slowing or preventing the spread of the virus is all about mitigating the risk of exposure by limiting or eliminating possible sources of the virus (both in length of exposure to a particular patron/customer as well as the sheer number of patrons/customers that an employee is exposed to during an entire shift). Since in certain industries employees have to be present for the entire shift, having a stricter face covering requirement is a proven method for reducing the risk of exposure.

Yes. 16VAC25-220-40.L.5 applies to port-a-johns or privies.

NOTE: Normally, port-a-johns or privies are rented from a service company and the agreement specifies the number of cleanings and servicing. They are normally serviced and cleaned two or three times per week, depending on the use, time of year or need due to site conditions. The servicing and cleaning is performed by an employee of the rental/service company providing the “johnny”.

No, the updates do not apply to healthcare settings. The updated CDC guidelines can be found at: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here: https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://doli.dev.sitevision.com/emergency-temporary-standard-interim-final-rule/

No, the Virginia standard was updated with an effective date of September 8, 2021, and reflects CDC guidance as of that date.

16VAC25-220-40.L.4 provides:

4. Areas in the place of employment where suspected or confirmed COVID-19 employees or other persons accessed or worked shall be cleaned and disinfected prior to allowing other employees access to the areas as follows:
5. The provisions in subdivisions 4 b, 4 c, and 4 d of this subsection do not apply to health care settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.
6. If less than 24 hours have passed since the person who is sick or diagnosed with COVID-19 has been in the space, clean and disinfect the space.
7. If more than 24 hours have passed since the person who is sick or diagnosed with COVID-19 has been in the space, cleaning is enough. Employers may choose to also disinfect depending on certain conditions or everyday practices required by the facility.
8. If more than three days have passed since the person who is sick or diagnosed with COVID-19 has been in the space, no additional cleaning or disinfecting beyond regular cleaning practices is needed.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here:
https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

No. 16VAC25-220-40.L.5 was revised effective September 8, 2021 to only apply to cleaning, but not disinfecting.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here:
https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

No. 16VAC25-220-40.L.6 provides:

All shared tools, equipment, workspaces, and vehicles shall be cleaned prior to transfer from one employee to another. This subsection does not apply when the transfer is from one fully vaccinated employee to another fully vaccinated employee.

Because the updated CDC guidelines do not address “shared” tools, equipment, workspaces and vehicles, employers must continue to comply with the requirements in 16VAC25-220-40.L.6.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here:
https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

• personal protective equipment
• respiratory protective equipment
• sanitation
• access to employee exposure and medical records
• occupational exposure to hazardous chemicals in laboratories
• hazard communication
• recordkeeping

No. While the standard does not mandate face coverings for the general public, 16VAC25-220-50.C.8 provides as follows for workplaces in health care services or health care support services:

8. Employers shall provide face coverings to suspected COVID-19 non-employees to contain respiratory secretions until the non-employees are able to leave the site (i.e., for medical evaluation and care or to return home).

The above requirement is also contained in 16VAC25-220-60.C.2 for higher risk workplaces.

Employers only need notify DOLI about two (2) or more positive COVID-19 tests of its own employees under 16VAC25-220-40.B.7.e.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies. The portal went live on Monday, September 28, 2020. Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

Yes, when outside, employees in the situation you describe do not have to wear a face covering as long as they can maintain six feet of physical distancing from others.

Yes, when outside, employees in the situation you describe do not have to wear a face covering as long as they can maintain six feet of physical distancing from others.

Also, please note that there are regulatory requirements for employees that ride together in vehicles contained in 16VAC25-220-40.F:

Yes. 16VAC25-220-40.F.7 provides:

7. For commercial motor vehicles or trucks, if the driver is the only person in the vehicle or truck, or the vehicle or truck is operated by a team who all live in the same household and are the only persons in the vehicle, an employer of such drivers would be considered to be in compliance with subdivisions F 1 through F 5 of this section.

NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Board’s Virginia Standard for Infectious Disease Prevention (VS) on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://doli.dev.sitevision.com/emergency-temporary-standard-interim-final-rule/

Yes, except as noted below. With regard to the new communal gathering recommendations for employees you reference, the guidance states as follows:

In general, fully vaccinated HCP [healthcare personnel] should continue to wear source control while at work. However, fully vaccinated HCP could dine and socialize together in break rooms and conduct in-person meetings without source control or physical distancing. If unvaccinated HCP are present, everyone should wear source control and unvaccinated HCP should physically distance from others.

https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html

However, on July 27, 2021, the CDC updated its guidance for fully vaccinated people: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

The July 27, 2021, guidance provides that persons who have been fully vaccinated:

To reduce their risk of becoming infected with the Delta variant and potentially spreading it to others, CDC recommends that fully vaccinated people: Wear a mask in public indoor settings if they are in an area of substantial or high transmission….

Healthcare workers can determine if their place of employment is in an area of substantial or high transmission at:

https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

The Virginia Standard provides flexibility for the Department and employers as CDC workplace guidance changes. 16VAC25-220-10.E provides as follows:

To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard, the employer’s actions shall be considered in compliance with this standard….The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

As the CDC comes out with revised guidelines for fully vaccinated employees in a public workplace setting, the Department reviews the changes with the Virginia Department of Health (VDH) and addresses any changes in compliance requirements in an FAQ.

In regard to your question about the CDC update to communal gathering requirements and the apparent conflict with 16VAC25-220-40.H, the Department and VDH agree that based on the CDC’s science-based determination that fully vaccinated HCP can safely “dine and socialize together in break rooms and conduct in-person meetings without source control or physical distancing,” such gatherings would be in compliance with and provide employees equivalent protection to 16VAC25-220-40.H, provided that unvaccinated HCP are not present, and provided that the place of employment is not in an area of substantial or high transmission.

Yes. See FAQ 24 for the difference between “isolation” and “quarantine.” Fully vaccinated employees that experience COVID-19 signs or symptoms are classified as “suspected to be infected with SARS-CoV-2 virus” which means a person who has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2, and no alternative diagnosis has been made (e.g., tested positive for influenza), 16VAC25-220-30. In such situations, employers and employees must comply with requirements in 16VAC25-220-40.B.5 and -40.C and as further explained in DOLI FAQs.

NOTE: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson &amp; Johnson [J&amp;J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

Yes. Va. Code §40.1-51.2(a), rights and duties of employees provides as follows:

(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.

Employers have the duty to “to furnish to each of his employees safe employment and a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” Va. Code §40.1-51.1.A; and the right to establish workplace safety and health rules and to enforce them, 16VAC25-60-260.B.

NOTE 1: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson &amp; Johnson [J&amp;J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

Yes, but only for employees that are covered by 16VAC25-220-50 and -60.

The Virginia Standard does not require daily health assessments or daily screenings of employees that are not covered by 16VAC25-220-50 and -60. Instead, 16VAC25-220-40.B.4 provides:

4. Employers shall develop and implement policies and procedures for employees to report when they are experiencing signs or symptoms consistent with COVID-19, and no alternative diagnosis has been made (e.g., tested positive for influenza). Such employees shall be designated by the employer as suspected COVID-19.

See CDC guidance for fully vaccinated people that are experiencing COVID-19 signs or symptoms; and for fully vaccinated people that have tested positive for COVID-19 in the prior 10 days at:

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html#:~:text=Guiding%20Principles%20for%20Fully%20Vaccinated%20People,-Indoor%20and%20outdoor&text=Fully%20vaccinated%20people%20should%20still,are%20experiencing%20COVID%2D19%20symptoms.

Yes. The Virginia Safety and Health Codes Board adopted the following regulations in 2006 which contain nearly identical language:

• 16VAC25-60-120.B (General Industry)
• 16VAC25-60-130.B (Construction Industry)
• 16VAC25-60-140.C (Agriculture)
• 16VAC25-60-150.B (Public Sector Maritime)

16VAC25-60-120.B provides for general industry employers:

1910. The employer shall comply with the manufacturer’s specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

It is the Department’s position that air handling systems consist of “machinery,” “materials” and “equipment” and that employers must “comply with the manufacturer’s specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of” such air handling systems.

NOTE: 16VAC25-220-50.B.1.a provides that “Employers shall ensure that appropriate air-handling systems under their control: a. Are installed and maintained in accordance with the USBC and manufacturer’s instructions in health care facilities and other places of employment….”

16VAC25-220-60.B.1.a provides that “Employers shall ensure that air-handling systems under their control: a. Are maintained in accordance with the manufacturer’s instructions….”

When you use the term “risk assessment” we assume you are referring to the requirement in 16VAC25-220-40.B.1 that:

1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

In the context of your statement that you are dealing with multiple worksite locations, if you have consistent types of job tasks across those locations, please note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.” An employer may prepare a risk assessment that provides corporate wide classification of hazards and job tasks for its Virginia locations that could meet the requirements of the standard.

NOTE: General industry employers are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

However, please note that if an individual location had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific worksite location.

The individual worksite locations would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

No. First, it is important to note that the standard and General Industry standard §1910.141, Sanitation already includes a requirement for of employee access to hand washing facilities:

• “Employees shall have easy, frequent access and permission to use soap and water,” 16VAC25-220-40.L.9;
• “Each lavatory shall be provided hot and cold running water, or tepid running water,” 1910.141(d)(2)(ii); and
• “Hand soap or similar cleansing agents shall be provided,” 1910.141(d)(2)(iii).

Second, both final standard sections referenced above acknowledge that there may be considerations of “feasibility” regarding the supply and usage of alcohol-based hand sanitizer (“hand sanitizer where feasible”).

With regard to the fire hazard concern, 16VAC25-220-40.E.4 specifically acknowledges that “Hand sanitizers required for use to protect against SARS-CoV-2 are flammable and use and storage in hot environments can result in a hazard.”

VOSH encourages employers to engage in management of change best practices to prevent the unintentional introduction of a new occupational hazard when a new chemical, material, product, etc., is introduced into an existing work environment. VOSH considers the potential for a fire hazard due to the presence of alcohol-based hand sanitizers in a hot manufacturing environment to present an issue of infeasibility within the definition of that term in the standard or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

With regard to the concern that the introduction of an alcohol-based hand sanitizer into a facility could pose a threat of product contamination, VOSH considers product contamination concerns to present an issue of infeasibility within the definition of that term in the standard or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

With regard to “sanitation” under 16VAC25-220-40.E.4, -40.L.9, and 1910.141,^[1] truck drivers are considered to be part of a “mobile crew”. 16VAC25-220-40.L.10 provides:

10. Mobile crews shall be provided with hand sanitizer where feasible for the duration of work at a work site or client or customer location and shall have transportation immediately available to nearby toilet facilities and handwashing facilities that meet the requirements of VOSH laws, standards, and regulations dealing with sanitation. Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard.

Also, §1910.141(c)(1)(ii) provides:

The requirements of paragraph (c)(1)(i) (which contains the requirement for providing toilet facilities) of this section do not apply to mobile crews or to normally unattended work locations so long as employees working at these locations have transportation immediately available to nearby toilet facilities which meet the other requirements of this subparagraph.

In addition, §1910.141(d)(2)(i) provides:

Lavatories (lavatories are required to be provided with hot and cold running water, or tepid running water) shall be made available in all places of employment. The requirements of this subdivision do not apply to mobile crews or to normally unattended work locations if employees working at these locations have transportation readily available to nearby washing facilities which meet the other requirements of this paragraph.

With regard to the requirement to provide hand sanitizer, VOSH assumes that the employer can comply with this requirement “where feasible” as the standard provides in 16VAC25-220-40.E.4 and -40.L.10.

However, please note the potential hazard of locating hand sanitizer in vehicle cabs where a hot environment might develop (this is regarded as a “feasibility” issue that needs to be considered by the employer). 16VAC25-220-40.L.10 provides:

….Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard.

With regard to the standard requirements for common areas, breakrooms, or lunchrooms where drivers conduct loading and unloading duties (“host employers”), if they are closed to your employees, the standard requirements are not implicated.

If the areas are open to your employees and the host employer has implemented precautions consistent with the requirements in 16VAC25-220-40.E dealing with “Access to common areas, breakrooms, or lunchrooms shall be closed or controlled,” then the driver’s employer can instruct employees that they can use the areas, provided the employees follow the host employer’s rules for use

If the areas are open to your employees, but the host employer has not complied with the requirements in 16VAC25-220-40.E, the driver’s employer can instruct employees to not use those areas.

All federal OSHA identical standards and regulations enforced by VOSH in General Industry (29 CFR Part 1910) apply to general industry employers like the trucking industry, except where otherwise exempted by §4(b)(1) of the OSH Act of 1970. Two such standards are the Personal Protective Equipment (PPE) (1910.132^[1]) and Respiratory Protection (1910.134^[2]) standards. COVID-19 is a respiratory disease that spreads easily through airborne transmission between persons in contact with each other inside six feet, so the PPE and Respirator Standards are considered applicable.

No, except as noted below, fit testing and medical evaluations are not required by 16VAC25-220-40.F. Facial hair is not prohibited when voluntarily using respirators, but it is discouraged.

NOTE: This interpretation does not apply to situations where employees are occupying a vehicle and exposed to hazards or job tasks classified as very high or high risk exposure as defined in 16VAC25-220-30.

16VAC25-220-40.F provides in part:

1. When an employee is occupying a vehicle or other form of transportation with one or more employees or other persons for work purposes, employers shall use the hierarchy of hazard controls to mitigate the hazards associated with SARS-CoV-2 and COVID19 to prevent employee exposures in the following order:

This subsection does not apply to fully vaccinated employees in areas of low to moderate community transmission and except as otherwise noted:

1. When an employee who is not fully vaccinated must share a work vehicle or other transportation with one or more employees or other persons because no other alternatives are available, such employees shall be provided with and wear respiratory protection, such as an N95 filtering face piece respirator, or a face covering at the option of the employee. When an employee who is fully vaccinated must share work vehicles or other transportation with one or more employees or other persons in areas of substantial or high community transmission because no other alternatives are available, such employees shall be provided with and wear face coverings.

Because the first sentence in 16VAC25-220-40.F.4 provides that employers shall provide employees with respiratory protection or a face covering at the option of the employee, the Department interprets the section to mean that any employees who choose to wear a filtering face piece respirator (e.g., N95 respirator) provided by the employer are doing so on a voluntary basis.

In such cases of voluntary use, employers will meet the requirements of 16VAC25-220-40.F.4 if they comply with the following requirements:

• The employer shall provide the a filtering face piece respirator (e.g., N95 respirator) at no cost to employees;
• The employer must allow the voluntary use of respirators even where an exposure assessment shows respirator use is not required. The use of respirators is not regarded as mandatory unless required under the standard and/or the employer requires that employees wear respirators regardless of the exposure assessment results.
• In such cases of voluntary use, the employer must provide the respirator users with the information contained in Appendix D of the standard in accordance with1910.134(c)(2)(i) (“Information for Employees Using Respirators When Not Required Under the Standard”.)
• In addition, 1910.134(c)(2)(i) also requires the employer to determine “. . . that such respirator use will not in itself create a hazard.”

Please note that if an employer permits the use of respirators other than filtering face pieces, the employer must pay for required medical evaluations for voluntary users and provide voluntary users with appropriate facilities and time to clean, disinfect, maintain, and store respirators.

If employers allow the voluntary use of elastomeric face piece and powered air-purifying respirators (after determining that such use will not itself create a hazard), the employer must implement the elements of a written respiratory protection program necessary to ensure that employees voluntarily using such respirators are medically fit to do so, and that the respirator is cleaned, stored, and maintained so that its use does not present a health hazard to the user. See 1910.134(c)(2)(ii).

Yes. All federal OSHA identical standards and regulations enforced by VOSH (e.g., 29 CFR Part 1910) apply to all covered employers and employees, except where otherwise exempted by §4(b)(1) of the OSH Act of 1970. Two such standards are the Personal Protective Equipment (PPE) (1910.132) and Respiratory Protection (1910.134) standards. COVID-19 is a respiratory disease that spreads easily through exposure to respiratory fluids carrying infectious virus (i.e., through 1) inhalation of droplets and aerosol particles, 2) deposition of respiratory droplets and particles on exposed mucous membranes in the mouth, nose, or eye by direct splashes and sprays, or 3) touching mucous membranes with hands that have been soiled either directly by virus-containing respiratory fluids or indirectly by touching surfaces with virus on them) between persons in contact with each other inside six feet, so the PPE and Respirator Standards are considered applicable.

Va. Code §40.1-51.2(a), rights and duties of employees provides as follows:

(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.

NOTE 1: A surgical/medical procedure mask is considered a form of personal protective equipment (testing and approval is cleared by the U.S. Food and Drug Administration (FDA)), but is not considered respiratory protection equipment. Many face coverings are not subject to testing and approval by a state or federal government agency, and in such cases are not considered a form of personal protective equipment or respiratory protection equipment, but are an acceptable alternative in certain situations under the VS. See §40, FAQ 36 for further information on how the VS applies to respirators, personal protective equipment and face coverings based on an employer’s assessment of risk levels for hazards and job tasks to which employees are potentially exposed.

NOTE 2: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson &amp; Johnson [J&amp;J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

Yes, in certain circumstances as described below.

Yes. 16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/
NOTE 1: Correctional facilities, jails detention centers, and juvenile detention centers can be classified as high risk workplaces, which are covered by additional requirements in 16VAC25-220-60.

NOTE 2: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson &amp; Johnson [J&amp;J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

Yes, but see further discussion below.

NOTE:      As of October 6, 2021, all counties and cities in Virginia are experiencing either high or substantial community transmission of the SARS-CoV-2 virus:

https://covid.cdc.gov/covid-data-tracker/#county-view

While 16VAC25-220-40 in the initial permanent standard generally provided employers the option of either assuring a minimum of 6 feet of physical distancing between employees and other persons or requiring respirators/personal protective equipment, face coverings or other mitigation strategies for employees that significantly reduced or eliminated exposure to the virus; the current standard does not. Also, please remember that 16VAC25-220-60.C.11 for medium risk hazards and job tasks in the initial permanent standard required that “Employers shall provide and require employees in customer or other person facing jobs to wear face coverings.”

The current standard, which was amended by the Virginia Safety and Health Codes Board effective September 8, 2021,  moved away from a focus on exposure risk levels (very high, high, medium and lower), to one that takes into account the widespread availability of effective vaccines and updated CDC guidance.

When the CDC comes out with revised guidelines impacting the Virginia Standard for COVID-19, the Department reviews the changes with the Virginia Department of Health (VDH) and addresses any changes in compliance requirements in an FAQ.

Current CDC guidance does not allow or take into account the ability to maintain physical distancing as an exception to wearing face masks or face coverings while indoors.  As of October 6, 2021, current CDC guidance for fully vaccinated individuals can be found at: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

While 16VAC25-220-40.D of the current standard continues to address physical distancing when it provides that “….employers shall establish and implement policies and procedures that ensure employees who are not fully vaccinated and otherwise at-risk employees observe physical distancing while on the job and during paid breaks on the employer’s property,” physical distancing is considered an additional mitigation strategy to supplement the face covering/surgical mask requirement of 16VAC25-220-40.G.

16VAC25-220-40.G was revised to directly address face covering/surgical mask requirements applicable to Virginia employers and employees:

1. Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE. Such employees shall wear a face covering or surgical mask that covers the nose and mouth to contain the wearer’s respiratory droplets and help protect others and potentially themselves. This subsection does not apply to fully vaccinated employees in areas of low to moderate community transmission, and except as otherwise noted.

16VAC25-220-40.G.1-6 provides exceptions to the above requirement:

1. When an employee is alone in a room.
2. While an employee is eating and drinking at the workplace, provided each employee is at least six feet away from any other person, or separated from other people by a physical barrier.
3. When employees are wearing respiratory protection in accordance with 16VAC25-90-1910.134 or this chapter.
4. When it is important to see a person’s mouth (e.g., communicating with an individual who is deaf or hard of hearing) and the conditions do not permit a facemask that is constructed of clear plastic or includes a clear plastic window. In such situations, the employer must ensure that each employee wears an alternative to protect the employee, such as a face shield, if the conditions permit it. The employer may determine that the use of face shields without facemasks in certain settings is not appropriate due to other infection control concerns.
5. When employees cannot wear facemasks due to a medical necessity, medical condition, or disability as defined in the Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.), or due to a religious belief…. In all such situations, the employer must ensure that any such employee wears a face shield for the protection of the employee, if their condition or disability permits it.
6. When the employer can demonstrate that the use of a facemask presents a hazard to an employee of serious injury or death (e.g., arc flash, heat stress, interfering with the safe operation of equipment). In such situations, the employer must ensure that each employee wears an alternative to protect the employee, such as a face shield, if the conditions permit it.

Unless one of the exceptions listed in 16VAC25-220-40.G.1-6 applies, or as otherwise noted in these FAQs, employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at risk employees are required to wear a face covering or surgical mask while working indoors.  Physical distancing of 6 feet is not listed as an exception in 16VAC25-220-40.G.1-6.

Employers are required under 16VAC25-220-40.B.1 to conduct a hazard assessment of their workplace and the above-referenced considerations need to be addressed as part of the assessment, so that the employer can determine what kind of additional mitigation strategies are appropriate to protect employees from the spread of the virus.

NOTE:   General industry employers are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

A hazard assessment form can be found at:  https://doli.dev.sitevision.com/outreach-education-and-training-for-the-virginia-standard-for-infectious-disease-prevention-of-the-sars-cov-2-virus-that-causes-covid-19-16vac25-220/

In the event of an inspection, VOSH will evaluate the situation on a case-by-case basis, but the starting place is that 16VAC25-220-40.G requires employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at risk employees are required to where a face covering or surgical mask while working indoors, unless one of the exceptions in 40.G.1-6 apply.

Please note that employers can take advantage of 16VAC25-220-10.E in looking to potentially implement current CDC guidance for their industry.  Section 10.E was revised by the Safety and Health Codes Board on August 26, 2021 and took effect on September 8, 2021, and provides that:

1. To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this chapter, the employer’s actions shall be considered in compliance with this chapter. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines. (Emphasis added).

As of October 6, 2021, current CDC guidance for fully vaccinated individuals can be found at: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

Current CDC guidance for unvaccinated individuals can be found at: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html

It is recommended that employers looking to take advantage of 16VAC25-220-10.E review the Department’s FAQ entitled “IF AN EMPLOYER COMPLIES WITH CDC GUIDANCE FOR ITS INDUSTRY, DO THEY HAVE TO COMPLY WITH THE STANDARD.

Department FAQs can be found at: https://doli.dev.sitevision.com/final-covid-19-standard-frequently-asked-questions/

No.

16VAC25-220-40.G provides in part:

1. Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE….The following are exceptions to the requirements for face coverings, facemasks or surgical masks for employees that are not fully vaccinated and fully vaccinated employees in areas of substantial or high community transmission:
2. When an employee is alone in a room.

The term “room” is not defined in the standard, but is used in a number of different contexts that can reasonably be interpreted as including the presence of floor to ceiling walls on three sides and at least one closeable entry/exit (e.g., a door, floor to ceiling curtain as is present in some hospital settings; etc.) as being shared elements:

airborne infection isolation room
breakrooms
lunchrooms
locker rooms
common room
bathroom
restroom
changing room

NOTE: Situations involving a work area with floor to ceiling walls on three sides and an entry/exit with no closeable doorway will be evaluated by VOSH on a case-by-case basis.

In addition, the term “physical distancing” refers to an office setting as follows:

“Physical distancing”… means a person keeping space between himself and other persons while conducting work-related activities inside and outside of the physical establishment by staying at least six feet from other persons. Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall (e.g., an office setting) constitutes one form of physical distancing from an employee or other person stationed on the other side of the wall, provided that six feet of travel distance is maintained from others around the edges or sides of the wall as well. (Emphasis added).

16VAC25-220-10.A provides that the standard is “designed to establish requirements for employers to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID19) to and among employees and employers.

The CDC recognizes the SARS-CoV-2 virus as an airborne-transmissible infectious disease where exposure occurs in three principal ways:

“(1) inhalation of very fine respiratory droplets and aerosol particles, (2) deposition of respiratory droplets and particles on exposed mucous membranes in the mouth, nose, or eye by direct splashes and sprays, and (3) touching mucous membranes with hands that have been soiled either directly by virus-containing respiratory fluids or indirectly by touching surfaces with virus on them.

People release respiratory fluids during exhalation (e.g., quiet breathing, speaking, singing, exercise, coughing, sneezing) in the form of droplets across a spectrum of sizes. These droplets carry virus and transmit infection.

The largest droplets settle out of the air rapidly, within seconds to minutes.

The smallest very fine droplets, and aerosol particles formed when these fine droplets rapidly dry, are small enough that they can remain suspended in the air for minutes to hours.”

https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html

A review of internet web sites indicates that there is a range of standard cubicle/modular wall heights, with the overwhelming majority not involving floor to ceiling heights that would prohibit or limit the circulation of airborne respiratory droplets and aerosol particles and thereby achieve the intended purpose of the standard to “control, prevent, and mitigate the spread of SARS-CoV-2.”

Yes, except as otherwise noted in these FAQs, and only in areas of medium and low COVID-19 community levels as defined by the CDC.

16VAC25-220-40.G, Mandatory requirements for all employers, contains a mask requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”[1]

16VAC25-220-40.G further provides a list of exceptions to the masking requirement, including when an employee is alone in a room, etc.

CDC Guidance Update

On February 25, 2022, the CDC updated its mask wearing guidance based on community level metrics. “CDC looks at the combination of three metrics — new COVID-19 admissions per 100,000 population in the past 7 days, the percent of staffed inpatient beds occupied by COVID-19 patients, and total new COVID-19 cases per 100,000 population in the past 7 days — to determine the COVID-19 community level.”[2]

In areas of low COVID-19 community level, the CDC updated guidance does not include mask wearing.

In areas of medium COVID-19 community level, the CDC updated guidance provides:

• If you are immunocompromised or at high risk for severe disease, talk to your healthcare provider about whether you need to wear a mask and take other precautions (e.g., testing).

In areas of high COVID-19 community level, the CDC updated guidance provides:

• Wear a well-fitting mask indoors in public, regardless of vaccination status.
• If you are immunocompromised or high risk for severe disease, wear a mask or respirator that provides you with greater protection.
• If you are immunocompromised or high risk for severe disease, talk to your healthcare provider about whether you need to wear a mask and take other precautions (e.g., testing).

You can determine your place of employment’s COVID-19 community level at:

https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html

16VAC25-220-10.E Analysis

The Virginia Standard provides flexibility for the Department and employers as CDC workplace guidance changes. Section 16VAC25-220-10.E provides that:

To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this chapter, the employer’s actions shall be considered in compliance with this standard. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

The intent of 16VAC25-220-10.E is to give employers the option to either comply with the requirements of a provision of the Virginia Standard or demonstrate as an alternative that they have actually complied with the mandatory and non-mandatory “recommendations” and “considerations” in a CDC publication addressing the same hazards, issues, requirements, etc., that are also addressed in a specific provision of the VOSH Standard.

As provided in 10.E, the Commissioner of Labor and Industry will consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

The Department and VDH agree that, with the exceptions noted for employers and employees whose job duties include providing medical care/non-medical care to known or suspected COVID-19 persons, an employer’s compliance with the mandatory and non-mandatory updated CDC guidance on mask wearing issued on February 25, 2022, would be in compliance with 16VAC25-220-40.G.

NOTE: CDC’s new COVID-19 Community Levels recommendations do not apply in healthcare settings, such as hospitals and nursing homes. Instead, healthcare settings should continue to use community transmission rates and continue to follow CDC’s infection prevention and control recommendations for healthcare settings. Employers and employees whose job tasks include providing medical assistance/non-medical care to known or suspected COVID-19 persons (e.g., hospitals, urgent care facilities, doctor’s offices, medical clinics, first aid providers, emergency response personnel, nursing homes, assisted living facilities, etc.) must continue to comply with 16VAC25-220.40.G and other applicable VOSH standards (e.g., Respiratory Protection Standard, 1910.134; Personal Protective Equipment Standard, 1910.132, etc.).

[1] https://doli.dev.sitevision.com/wp-content/uploads/2021/10/VAC-16VAC25-220-Virginia-Standard-10.6.21-Current.pdf

[2] https://www.cdc.gov/coronavirus/2019-ncov/science/community-levels.html?ACSTrackingID=USCDC_2145-DM76655&ACSTrackingLabel=02.25.2022%20-%20COVID-19%20Data%20Tracker%20Weekly%20Review&deliveryName=USCDC_2145-DM76655

Yes. The U.S. Department of Health and Human Services permits covered entities and business associates to disclose protected health information without authorization for specified public health purposes. Further information is available here.

Yes. The U.S. Equal Employment Opportunity Commission (question B3) states an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

16VAC25-220-40.B.7.d and -40.B.7.e require employers to report certain positive COVID-19 cases involving employees “present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period”:

d. The Virginia Department of Health. Every employer as defined by § 40.1-2 of the Code of Virginia shall report to the Virginia Department of Health (VDH) when the work site has had three or more confirmed cases of COVID-19 of its own employees present at the place of employment within a 14-day period testing positive for COVID-19 during that 14-day time period. Employers shall make such a report in a manner specified by VDH, including name, date of birth, and contact information of each case, within 24 hours of becoming aware of such cases. Employers shall continue to report all cases until the local health department has closed the outbreak investigation. After the outbreak investigation is closed, subsequent identification of three or more confirmed cases of COVID-19 shall be reported, as required by this subdivision B 7 d. The following employers are exempt from this provision because of separate outbreak reporting requirements contained in 12VAC5-90-90: any residential or day program, service, or facility licensed or operated by any agency of the Commonwealth, school, child care center, or summer camp; and

e. The Virginia Department of Labor and Industry within 24 hours of the discovery of three or more of its own employees present at the place of employment within a 14-day period testing positive for COVID-19 during that 14-day time period. A reported positive COVID-19 does not need to be reported more than once and will not be used for the purpose of identifying more than one grouping of three or more cases, or more than one 14-day period.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies. The portal went live on Monday, September 28, 2020. Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

Employees seeking a religious accommodation from a particular requirement of the Virginia Standard need to direct such requests to their employer.  It is the employer’s responsibility to comply with the law and pursue legal advice from counsel if it needs to resolve requests from employees.

The same analysis that would ordinarily apply to a request for religious accommodation under Title VII applies here.

The Equal Employment Opportunity Commission has often addressed this issue and published frequently on the topic.  The EEOC’s Office of Legal Counsel (OLC) issued EEOC-NVTA-0000-20 and it can be found here: https://www.eeoc.gov/laws/guidance/what-you-should-know-workplace-religious-accommodation

The document cites real-world EEOC cases and fact patterns, how they were resolved, and links to them.

The OLC also issued the EEOC’s Compliance Manual Section on Religious Discrimination – which includes discussion of accommodations/undue hardships – found here https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.

The OLC also issued a document about religious garb in the workplace found here: https://www.eeoc.gov/laws/guidance/religious-garb-and-grooming-workplace-rights-and-responsibilities

DOLI FAQs can be found at: https://doli.dev.sitevision.com/final-covid-19-standard-frequently-asked-questions/

Please note that face coverings are not considered respirators under 1910.134 or personal protective equipment under 1910.132.

16VAC25-220-20, Definitions, provides a definition of face covering:

“Face covering” means an item made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers are considered acceptable face coverings. Nonmedical disposable masks for single use that otherwise meet the definition of “face covering” in this chapter, with the exception that they are not washable, are permissible to use as face coverings. Face coverings shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl. A face covering is not a surgical mask or respirator. A face covering is not subject to testing and approval by a state or federal government agency, so it is not considered a form of personal protective equipment or respiratory protection equipment under VOSH laws, rules, regulations, and standards. Notwithstanding any other provisions in this definition, face coverings approved as having met ASTM standards for face coverings effective against the SARS-CoV-2 virus shall be considered to be in compliance with this chapter.

There is no prohibition in the standard against wearing a face covering over facial hair.

Floor to ceiling barriers are one way of accomplishing physical distancing, but not required where it is already feasible to accomplish in other ways.

The definition of “Physical distancing” provides in part:

Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall (e.g., an office setting) constitutes one form of physical distancing from an employee or other person stationed on the other side of the wall, provided that six feet of travel distance is maintained from others around the edges or sides of the wall as well.

Yes.

On December 27, 2021, the updated isolation and quarantine periods for COVID-19 for the general public:

“CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others. The change is motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and the 2-3 days after. Therefore, people who test positive should isolate for 5 days and, if asymptomatic at that time, they may leave isolation if they can continue to mask for 5 days to minimize the risk of infecting others.

Additionally, CDC is updating the recommended quarantine period for those exposed to COVID-19. For people who are unvaccinated or are more than six months out from their second mRNA dose (or more than 2 months after the J&J vaccine) and not yet boosted, CDC now recommends quarantine for 5 days followed by strict mask use for an additional 5 days. Alternatively, if a 5-day quarantine is not feasible, it is imperative that an exposed person wear a well-fitting mask at all times when around others for 10 days after exposure. Individuals who have received their booster shot do not need to quarantine following an exposure, but should wear a mask for 10 days after the exposure.  For all those exposed, best practice would also include a test for SARS-CoV-2 at day 5 after exposure. If symptoms occur, individuals should immediately quarantine until a negative test confirms symptoms are not attributable to COVID-19.”

NOTE:  The Virginia Standard does not contain quarantine requirements, which are the purview of the Virginia Department of Health (VDH).  VDH quarantine requirements can be found at https://www.vdh.virginia.gov/coronavirus/protect-yourself/local-exposure/.

The Virginia Standard provides flexibility for the Department and employers as CDC workplace guidance changes. Section 16VAC25-220-10.E was revised by the Safety and Health Codes Board on August 26, 2021 and took effect on September 8, 2021, and provides that:

To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this chapter, the employer’s actions shall be considered in compliance with this standard. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall e considered evidence of good faith in any enforcement proceeding related to this chapter. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines

The intent of 16VAC25-220-10.E is to give employers the option to either comply with the requirements of a provision of the VOSH Standard or demonstrate as an alternative that they have actually complied with the mandatory and non-mandatory “recommendations” and “considerations” in a CDC publication addressing the same hazards, issues, requirements, etc., that are also addressed in a specific provision of the VOSH Standard.

As provided in 10.E, the Commissioner of Labor and Industry will consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

16VAC25-40.C.3 provides that:

3. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed health care provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Healthcare Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

The Department and VDH agree that a non-healthcare employer’s compliance with the updated CDC guidance on isolation issued on December 27, 2021 would be in compliance with 16VAC25-40.C.3.

NOTE:  Once an employee returns to work from isolation, 16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

Employers must follow appropriate Virginia Department of Health quarantine guidance requirements for employees who were close contacts of a COVID-19 case before allowing such employees to return to work.

https://www.vdh.virginia.gov/coronavirus/protect-yourself/local-exposure/

Per the U.S. Department of Health and Human Services’ (HHS) guidance on employers and health information in the workplace, HIPAA’s privacy rule does not protect employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.

Per HHS’ HIPAA information for professionals, the HIPAA Rules apply to covered entities and business associates.

HIPAA-covered entities include health plans, clearinghouses, and certain healthcare providers (e.g., providers who submit HIPAA transactions, like claims, electronically). A business associate is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. A member of the covered entity’s workforce is not a business associate. A covered health care provider, health plan, or health care clearinghouse can be a business associate of another covered entity.

Specifically, the Department of Health and Human services states “Individuals, organizations, and agencies that meet the definition of a <strong>covered entity</strong> under HIPAA must comply with the Rules’ requirements to protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information. If a covered entity engages a <strong>business associate</strong> to help it carry out its health care activities and functions, the covered entity must have a written business associate contract or other arrangement with the business associate that establishes specifically what the business associate has been engaged to do and requires the business associate to comply with the Rules’ requirements to protect the privacy and security of protected health information.

In addition to these contractual obligations, business associates are directly liable for compliance with certain provisions of the HIPAA Rules. If an entity does not meet the definition of a covered entity or business associate, it does not have to comply with the HIPAA Rules. See definitions of ‘business associate’ and ‘covered entity’ at 45 CFR 160.103.”

Employers should not forget that HIPAA does apply to an employer’s request for health information from a covered entity. A covered entity may not disclose protected health information to an employer without the employee’s authorization or as otherwise allowed by law. This is true even where the employee is also a patient or member of the covered entity; information maintained in that capacity may not be shared with human resources or an employee’s managers, except as expressly authorized by the employee or applicable law.

Additional information about compliance with HIPAA privacy standards can be found here.

Yes. 16VAC25-220-40.C.2 and C.3 provide:

2. If the employer knows an employee is suspected COVID-19, regardless of vaccination status then the employer must immediately remove that employee from the work site and either:
3. Keep the employee removed until they meet the return to work criteria in subdivision C 3 of this section; or
4. Keep the employee removed and provide a COVID-19 polymerase chain reaction (PCR) test at no cost to the employee.

(1) If the test results are negative, the employee may return to work immediately.

(2) If the test results are positive, the employer must comply with subdivision C 1 of this section.

(3) If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace consistent with subdivision C 1 of this section. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons.

3. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed health care provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Health care Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID-19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

In addition, the Equal Employment Opportunity Commission (EEOC) has decided that employers can require employees to be tested for COVID-19:

Answer to Question A.6, “….employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

No. Section 40.C.4 provides:

For purposes of this section, COVID-19 testing is considered a “medical examination” under §40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations. If an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of this subdivision C 3.

Yes. Section 40.B.7.c provides that:

…. The building or facility owner will require all employer tenants to notify the owner of the occurrence of a COVID-19-positive test for any employees or residents in the building. This notification will allow the owner to take the necessary steps to clean the common areas of the building. In addition, the building or facility owner will notify all employer tenants in the building that one or more cases have been discovered and the floor or work area where the case was located. The identity of the individual will be kept confidential in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable federal and Virginia laws and regulations.

Yes. 16VAC25-220-40.B.7 provides:

7. To the extent permitted by law, including HIPAA, employers shall establish a system to receive reports of positive COVID-19 tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being suspected or confirmed COVID-19) present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test). Employers shall notify:
8. The employer’s own employees who may have been exposed, within 24 hours of discovery of the employees’ possible exposure, while keeping confidential the identity of the confirmed COVID-19 person in accordance with the requirements of the Americans with Disabilities Act (ADA) (42 USC § 1201 et seq.) and other applicable federal and Virginia laws and regulations;
9. In the same manner as subdivision 7 a of this subsection, other employers whose employees were present at the work site during the same time period.

No. Please note that the reporting provisions in 16VAC25-220-40.B.7.d or -40.B.7.e only apply to situations where an employee was present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

In the context of 16VAC25-220-40.B.7.e, “place of employment” means that the 2 or more infected employees worked at the same work site.

16VAC25-220-40.B.7.e is not retroactive in nature, so the referenced time period first starts on the effective date of the standard, which was September 8, 2021.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.7.d and -40.B.7.e that satisfies COVID-19 reporting requirements for both agencies. Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

Employees potentially can be disciplined for refusing to be tested if the employer chooses to do so under its disciplinary policy.

The standard addresses testing in 16VAC25-220-40.C.2 and C.3 provide:

2. If the employer knows an employee is suspected COVID-19, regardless of vaccination status then the employer must immediately remove that employee from the work site and either:
3. Keep the employee removed and provide a COVID-19 polymerase chain reaction (PCR) test at no cost to the employee.

(1) If the test results are negative, the employee may return to work immediately.

(2) If the test results are positive, the employer must comply with subdivision C 1 of this section.

(3) If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace consistent with subdivision C 1 of this section. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons.

3. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed health care provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Health care Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID-19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

Yes, if an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of 16VAC25-220-40.C.4, which provides that:

For purposes of this section, COVID-19 testing is considered a “medical examination” under § 40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations. If an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of this subdivision C 4.

No. Employees were required to be notified.

The term “close contact” is not used in the standard. The term “close contact” is used by the CDC for determining when contact tracing should be conducted and is defined as “any individual within 6 feet of an infected person for at least 15 minutes.” <a href=”#_ftn1″>[1]</a> 16VAC25-220-10.F specifically provides that:

1. Nothing in the chapter shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.

16VAC25-220.40.B.7.a requires employers to notify their “own employees who may have been exposed, within 24 hours of discovery of the employees’ possible exposure….”

Just because an employer has a strict policy of physical distancing as the company alleges does not mean that all employees, customers or persons complied at all times. The intent of the notification requirement is to provide employees information of a “possible” exposure so that employees can make decisions for themselves on the appropriate course of action to take.

In a situation such as a typical beauty salon where the “footprint” of the floor space would not be considered large, and all employees work in the same work space on the same floor, the employer must notify all employees that were ”present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test).”

“Isolation” is the separation of people with COVID-19 from others. People in isolation need to stay home and separate themselves from others in the home as much as possible. Requirements for returning to work from isolation is covered by the standard in 16VAC25-220-40.C.

“Quarantine” is separation of people who were in “close contact” with a person with COVID-19 from others. People in quarantine should stay home as much as possible, limit their contact with other people, and monitor their health closely in case they become ill.

“Close contact” means you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.^[1]

Requirements for returning to work from “quarantine” is NOT covered by the standard. Instead, Virginia Department of Health (VDH) guidelines apply.

Virginia Department of Health quarantine guidance can be found at https://www.vdh.virginia.gov/coronavirus/protect-yourself/local-exposure/

These recommendations are based on what we know about COVID-19 vaccines and protection provided by previous infection at this time. CDC and other scientists continue to research the ability of COVID-19 vaccines to prevent transmission of the virus, but this process takes time. As we learn more, changes could be made to these recommendations.

16VAC25-220-20 defines the term as:

“Suspected COVID-19” as “a person who has been told by a licensed health care provider that they are suspected to have COVID-19; or is experiencing recent loss of taste and/or smell with no other explanation; or is experiencing both fever ( greater than or equal to 100.4° F) and new unexplained cough associated with shortness of breath; or has symptoms consistent with the clinical criteria in the CDC national case definition and no other explanation for symptoms exist.”

The Virginia Standard does not apply to quarantine situations.  Virginia Department of Health (VDH) quarantine guidelines can be found at https://www.vdh.virginia.gov/coronavirus/protect-yourself/local-exposure/

Although not defined in the standard, the Virginia Department of Health (VDH) and the CDC define “close contact” as meaning “you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.”^[1]

If the employee DID NOT have close contact with a COVID-19 case or an area with substantial COVID-19 transmission, but does have signs or symptoms and tested negative for

SARS-CoV-2, the negative test can be considered as supporting an “alternative diagnosis”, and the person would not be considered suspected to be infected with SARS-CoV-2 virus. The employee must remain out of work until signs and symptoms have resolved and the employee has been fever-free for at least 24 hours without the use of fever-reducing medicine (unless symptoms are due to a known non-infectious cause, such as allergies).

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

NOTE: It is important to remember that a negative test for SARS-CoV-2 only means that the person wasn’t infected at the time the test was taken. If the person is ill one week, tests negative for SARS-CoV-2, and recovers from their illness, only to become ill again soon after, there is always the potential that the repeat illness may be related to COVID. Each illness should be handled as a distinct situation, meaning, the employee should not always be considered to be COVID-19 negative because they tested negative previously.

No. OSHA and states that operate their own occupational safety and health plans, such as VOSH, are not a “covered entity” under HIPAA and are not bound by the use and disclosure requirements included in the HIPAA privacy statute or implementing regulations.

If your business obtained the worker from a temporary staffing agency and your company supervises them onsite, the worker is <u>not</u> a “contractor” but a temporary employee of the business (commonly referred to as the “host employer”). In temporary employment situations, the host employer is considered to be in a “joint employment” relationship with the temporary staffing agency.

16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this chapter also includes, but is not limited to, temporary employees and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.”

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the standard are the same as for any other VOSH or OSHA standard. See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

https://doli.dev.sitevision.com/conronavirus-covid-19-faqs/

With regard to the notification issue, either the host employer or the staffing agency has to notify VOSH – if neither reports it, then both employers could be subject to citation.

The host employer can make an arrangement with the temporary staffing agency that the temporary agency will be the one to notify VOSH, but the host employer needs to make sure that the notification is submitted to avoid any chance of citation.

Here is a link to the reporting portal for whichever employer chooses to do the reporting:

https://redcap.vdh.virginia.gov/redcap/surveys/?s=LRHNP89XPK

Table as of February 17, 2021

	Acceptable to use as respirator where required by VOSH standards and regulations	Acceptable to use as personal protective equipment (PPE) where required by VOSH standards and regulations	Acceptable to use as a face covering where required by VOSH standards and regulations
N-95 respirator with NO exhalation valve (approved by NIOSH)
N-95 respirator with NO exhalation valve (approved by NIOSH)	Acceptable to use as protection for the wearer EXCEPT in situations where a “sterile field” must be maintained (e.g., during an invasive procedure in an operating room; during aerosol-generating procedures, etc.)
“Surgical mask” and “Face mask” as defined in 16VAC25-220-30 (approved by the FDA)

[1] https://doli.dev.sitevision.com/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-Prevention-of-the-Virus-That-Causes-COVID-19-16-VAC25-220-1.27.2021.pdf

[2] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html

“Face covering” as defined in 16VAC25-220-30
KN-95 (not approved by NIOSH as respirator, but approved by China)
Non-medical disposable masks for single use that meet the definition of “face covering” in 16VAC25-220 with the exception that they are not washable
Transparent surgical face mask approved by the FDA[3]
Clear masks or cloth masks with a clear plastic panel that meet CDC guidance[4]

[3] https://www.accessdata.fda.gov/cdrh_docs/pdf20/K200576.pdf

[4] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html

Background

<u>Applicability of federal identical OSHA standards and regulations in Virginia</u>

VOSH standards and regulations identical to their OSHA counterparts that were in place and applicable to covered employers and employees prior to the COVID-19 pandemic are not impacted by any provisions in 16VAC25-220. VOSH is required by the OSH Act of 1970 and OSHA regulations to be “at least as effective as” federal OSHA. VOSH generally follows OSHA interpretations of federal identical standards and regulations:

16VAC25-220-10. Purpose, scope, and applicability.

40. This chapter is designed to supplement and enhance existing VOSH laws, rules, regulations, and standards applicable directly or indirectly to SARS-CoV-2 virus or COVID-19 disease-related hazards such as, but not limited to, those dealing with personal protective equipment, respiratory protective equipment, sanitation, access to employee exposure and medical records, occupational exposure to hazardous chemicals in laboratories, hazard communication, § 40.1-51.1 A of the Code of Virginia, etc. Should this standard conflict with an existing VOSH rule, regulation, or standard, the more stringent requirement from an occupational safety and health hazard prevention standpoint shall apply….

Federal OSHA Enforcement Guidance on Respirators
VOSH follows the following federal OSHA interpretations on respiratory usage:

Understanding Compliance with OSHA’s Respiratory Protection Standard During the Coronavirus Disease 2019 (COVID-19) Pandemic[1]

[1] https://www.osha.gov/sites/default/files/respiratory-protection-covid19-compliance.pdf

In addition, 16VAC25-220-40.F.6 provides:

16VAC25-220-40. Mandatory requirements for all employers.

F.

6. Until adequate supplies of respiratory protection and/or personal protective equipment become readily available for non-medical and non-first responder employers and employees, employers shall provide and employees shall wear face coverings while occupying a work vehicle or other transportation with other employees or persons.

Notwithstanding anything to the contrary in this chapter, the Secretary of Labor may exercise discretion in the enforcement of an employer’s failure to provide PPE required by this chapter, if the employer demonstrates that the employer:

1. Is exercising due diligence to come into compliance with such requirement; and
2. Is implementing alternative methods and measures to protect employees that are satisfactory to the Secretary of Labor after consultation with the commissioner and the Secretary of Health and Human Services.

Summary of How 16VAC25-220 Applies to Respirators, PPE and Face Coverings

16VAC25-220-40.B.1 provides:

1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

Employers Covered by 16VAC25-220-50 and -60
NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see

<a href=”https://doli.dev.sitevision.com/emergency-temporary-standard-interim-final-rule/”>https://doli.dev.sitevision.com/emergency-temporary-standard-interim-final-rule/</a>

Employers covered by 16VAC25-220-50 must comply with requirements for protecting such employees in 16VAC25-220-40, Mandatory requirements for all employers; and 16VAC25-220-50 and -60, using the occupational safety and health hierarchy of controls to implement mitigation efforts:

• engineering controls
• administrative and work practice controls (including sanitation)
• personal protective equipment^[1]
• respiratory protection equipment

Where it is not feasible to eliminate contact with others inside of six feet, or address the issue through administrative or work practice controls (e.g., telecommuting), such employers must determine what level of personal protective equipment (PPE) must be provided and worn as the last line of protection for employees against the virus.

Employers that are covered by 1910.132 (i.e., a general industry employer) must conduct a SARS-CoV-2 virus and COVID-19 disease-related hazard assessment and personal protective equipment selection in accordance with 1910.132(d). Any employer not currently covered by 1910.132 (e.g., a construction industry employer with a medical clinic) must conduct such an assessment in accordance with 16VAC25-220-50.D.

It is anticipated that employer PPE hazard assessments for employees covered by 16VAC25-220-50 would conclude that employees will be required at a minimum to wear either a respirator or surgical mask or face mask (medical procedure mask). It is also anticipated that in such situations employers would conclude that employees will be required a face shield as defined in 16VAC25-220-130.

[7] https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.132

https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.133

https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.138

Mandatory Face Covering Requirements for All Employers

Unless provided otherwise in the standard, 16VAC25-220-40.G requires that all:

“Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE. Such employees shall wear a face covering or surgical mask that covers the nose and mouth to contain the wearer’s respiratory droplets and help protect others and potentially themselves. This subsection does not apply to fully vaccinated employees in areas of low to moderate community transmission, and except as otherwise noted.

Exceptions to the above requirement are noted in 16VAC25-220-40.G.1-7.

Counterfeit Respirators/Misrepresentation of NIOSH Approval

Please note that there are many documented cases of counterfeit respirators/misrepresentation of NIOSH approval:

https://www.cdc.gov/niosh/npptl/usernotices/counterfeitResp.html

Yes, as provided below.

In response to the request from the VHHA, VDH and DOLI support a temporary pause in receiving reports of outbreaks among employees into the VDH/DOLI portal from acute care and critical access hospitals until February 21, 2022.  The date of February 21, 2022 was selected based on the expected duration of Executive Order Number Eleven, issued on January 20, 2022, which provides operational relief for hospitals and healthcare workers via declaration of a limited state of emergency.  VDH is supportive of pausing reports from acute care and critical access hospitals until this date.

While VDH is supportive of a temporary pause in reporting to the DOLI portal, acute care and critical access hospitals should be reminded that they are still required to report all suspected and confirmed outbreaks of disease, including those caused by COVID-19, to their local health department, in accordance with the Virginia Regulations for Disease Reporting and Control.  During this time of increased COVID-19 activity, VDH is most interested in receiving reports from acute care and critical access hospitals of outbreaks where in-hospital transmission is suspected to be occurring.

Employees seeking a medical accommodation from a particular requirement of the Virginia Standard need to direct such requests to their employer.  It is the employer’s responsibility to comply with the law and pursue legal advice from counsel if it needs to resolve requests from employees.

The same analysis that would ordinarily apply to a request for medical accommodation under Title VII applies here.

The Equal Employment Opportunity Commission has often addressed this issue and published frequently on the topic.

Section D contains FAQs on “reasonable accommodations” that are provided to employees with a disability. You will also see the term “undue hardship” referenced, which you should research to see if it applies to your company’s situation.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

DOLI FAQs can be found at: https://doli.dev.sitevision.com/final-covid-19-standard-frequently-asked-questions/

Yes. The OSHA ETS specifically excluded coverage of “healthcare support services not performed in a healthcare setting,” 1910.502(a)(2)(vi), and in a number of other healthcare related area, and in lieu of coverage under the OSHA ETS, such services are automatically covered by the Virginia standard.

Yes. The effective date is August 2, 2021 and the Emergency Temporary Standard (ETS) will expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://doli.dev.sitevision.com/emergency-temporary-standard-interim-final-rule/

No. 16VAC25-220-50.B.6 provides that:

6….Diagnostic laboratories that conduct routine medical testing and environmental specimen testing for COVID-19are not required to operate at BSL-3.

No. 16VAC25-220-60.B.1 specifically applies to air-handling systems under the control of the employer.

16VAC25-220-60.C.2 provides that:To the extent feasible, employers shall…Provide face coverings to suspected COVID-19 non-employees to contain respiratory secretions until they are able to leave the site (i.e., for medical evaluation/care or to return home).

Section 30 provides that:

“Suspected COVID-19” means a person who has been told by a licensed health care provider that they are suspected to have COVID-19; or is experiencing recent loss of taste and/or smell with no other explanation; or is experiencing both fever (greater than or equal to 100.4° F) and new unexplained cough associated with shortness of breath; or has symptoms consistent with the clinical criteria in the CDC national case definition and no other explanation for symptoms exist.

Employers with a higher risk workplace that employ eleven (11) or more employees must have a written Infectious Disease Preparedness and Response Plan. In counting the number of employees, the employer may exclude fully vaccinated employees.

The plan does not have to be submitted to VOSH unless it is specifically requested. It should be available for review if a VOSH inspection is conducted at the establishment.

Employers covered by 16VAC25-220-60, Requirements for higher-risk workplaces, are required to have a written Infectious disease preparedness and response plan if they have 11 or more employees. In counting the number of employees, the employer may exclude fully vaccinated employees.

Higher-risk workplaces include high customer volume workplaces. Depending on level of customer volume, some farmer’s markets could be covered by 16VAC25-220-60, while others would not.

As described in your question, a vendor would be considered an “independent contractor” and not an employee for purposes Virginia Occupational Safety and Health (VOSH) laws, standards and regulations. The standard’s requirement for an Infectious Disease Preparedness and Response Plan applies to “higher risk workplaces” when they have 11 or more employees.

Accordingly, only those high customer volume farmer’s market organizers that have 11 or more employees, or those high customer volume vendors who have 11 or more employees are required to have an Infectious Disease Preparedness and Response Plan. The vendors would not be considered employees of the farmer’s market organizer.

However, in case you are not aware of the issue, the Department wants to make sure you are familiar with an employment practice where some businesses will attempt to misclassify employees as “independent contractors” to avoid having to comply with federal and state legal protections for employees (e.g., workers’ compensation, occupational safety and health protections, unemployment compensation, etc.).

This practice is referred to as “misclassification” and when attempted by an employer can result in serious enforcement consequences from a variety of agencies including VOSH, the Virginia Employment Commission, the Virginia Department of Taxation, etc. Employers who engage in misclassification also open themselves up to the potential of being sued by employees who allege they were misclassified (See Va. Code 40.1-28.7:7, https://law.lis.virginia.gov/vacode/40.1-28.7:7/ ).

Here is a link to VOSH policy on the issue of worker misclassification for your information: https://doli.dev.sitevision.com/vosh-programs/misclassification-in-the-workplace/

Based on the description of the contractual relationship you described between farmer’s market organizers and vendors, it does not appear that misclassification should be an issue for your organization, but we want to make sure you were aware of the issue.

The answer to both questions is yes. Employees who were previously trained on the requirements of the ETS must be trained on the VOSH Standard for Infectious Disease Prevention. However, because there are similarities between the ETS and the VOSH Standard for Infectious Disease Prevention, an employer will be considered to be in compliance with 16VAC25-220-80 if they provide training to such employees on the following summary of significant changes:

https://doli.dev.sitevision.com/wp-content/uploads/2021/01/Summary-of-Significant-Changes-From-ETS-to-Final-Permanent-Standard-1.27.2021.pdf

A written certification pursuant to 16VAC25-220-80.C is required for such employees also covered by 16VAC25-220-50. Please note that the VOSH Standard for Infectious Disease Prevention includes the following new provision in 16VAC25-220-80.C.2:

2. A physical or electronic signature is not necessary if other documentation of training completion can be provided (e.g., electronic certification through a training system, security precautions that enable the employer to demonstrate that training was accessed by passwords and usernames unique to each employee, etc.).

Employees hired on or after January 27, 2021 need only be trained on the VOSH Standard for Infectious Disease Prevention. Such training must be completed by March 26, 2021.

Please also see the Department’s Outreach, Training and Education webpage for a document that shows all changes made from the ETS to the VOSH Standard for Infectious Disease Prevention (deleted language is struckthrough and new language is underlined).

https://doli.dev.sitevision.com/covid-19-outreach-education-and-training/

NOTE: Please note that such new training provided to employees previously trained on the ETS would not be considered “retraining” under the VOSH Standard for Infectious Disease Prevention. 16VAC25-220-80.D contains specific criteria for when an employee must be retrained on the standard (e.g., Inadequacies in an affected employee’s knowledge or use of workplace control measures indicate that the employee has not retained the requisite understanding or skill).

Yes. OSHA (and VOSH) have “a long and consistent history of interpreting its standards and other requirements to require employers to present information in a manner that their employees can understand.”

“In practical terms, this means that an employer must instruct its employees using both a language and vocabulary that the employees can understand. For example, if an employee does not speak or comprehend English, instruction must be provided in a language the employee can understand. Similarly, if the employee’s vocabulary is limited, the training must account for that limitation. By the same token, if employees are not literate, telling them to read training materials will not satisfy the employer’s training obligation. As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in language other than English….”

“Many OSHA standards require that employees receive training so that work will be performed in a safe and healthful manner. Some of these standards require “training” or “instruction,” others require “adequate” or “effective” training or instruction, and still others require training “in a manner” or “in language” that is understandable to employees. It is the Agency’s position that, regardless of the precise regulatory language, the terms “train” and “instruct,” as well as other synonyms, mean to present information in a manner that employees receiving it are capable of understanding. This follows from both the purpose of the standards — providing employees with information that will allow work to be performed in a safe and healthful manner that complies with OSHA requirements — and the basic definition that implies the information is presented in a manner the recipient is capable of understanding.”

NOTE: It is VOSH’s intent to provide outreach, education, and training materials on the standard in English and Spanish.

16VAC25-80.C provides in part that:

Employers covered by 16VAC25-220-50 shall verify compliance with 16VAC25-220-80.A by preparing a written certification record for those employees covered by the training requirements. The written certification record shall contain the name or other unique identifier of the employee trained, the trained employee’s physical or electronic signature….16VAC25-220-80.C.1.

16VAC25-220-80.C.2 addresses the issue raised in the question:

A physical or electronic signature is not necessary if other documentation of training completion can be provided (e.g., electronic certification through a training system, security precautions that enable the employer to demonstrate that training was accessed by passwords and usernames unique to each employee, etc.).

November 7, 2021.

The answer to both questions is yes. Employees who were trained on the requirements of the previous standard must be trained on the revised standard that took effect on September 8, 2021.

A written certification pursuant to 16VAC25-220-80.C is required for such employees also covered by 16VAC25-220-50. Please note that the standard includes the following new provision in 16VAC25-220-80.C.2:

Such training must be completed by November 7, 2021.

Please also see the Department’s Outreach, Training and Education webpage for free training documents.

NOTE: Please note that such new training provided to employees previously trained on the ETS would not be considered “retraining” under the standard. 16VAC25-220-80.D contains specific criteria for when an employee must be retrained on the standard (e.g., Inadequacies in an affected employee’s knowledge or use of workplace control measures indicate that the employee has not retained the requisite understanding or skill).

No. Pursuant to Va. Code §40.1-51.2:1, employees are protected from discrimination when they engage in activities protected by Title 40.1 of the Code of Virginia (“because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.”).

Whether an employee engaged in a “protected activity” under Title 40.1 is very fact specific, but can include occupational safety and health information shared by an employee about their employer on a social media platform in certain situations.

With regard to the specific situation described above, §90.C provides that:

No person shall discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.

Where “a person is lying on social media,” such an act by an employee would not be considered “reasonable” under the standard and disciplinary action taken against the employee in accordance with the employer’s human resource policies would not be considered “discrimination” under the standard or Va. Code §40.1-51.2:1.

For further background see §16VAC25-60-110. Whistleblower Discrimination; Discharge or Retaliation; Remedy for Retaliation:

A. In carrying out his duties under § 40.1-51.2:2 of the Code of Virginia, the commissioner shall consider case law, regulations, and formal policies of federal OSHA. An employee’s engagement in activities protected by Title 40.1 does not automatically render him immune from discharge or discipline for legitimate reasons. Termination or other disciplinary action may be taken for a combination of reasons, involving both discriminatory and nondiscriminatory motivations. In such a case, a violation of § 40.1-51.2:1 of the Code of Virginia has occurred if the protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place “but for” engagement in protected activity.

Employee whistleblower activities, protected by § 40.1-51.2:1 of the Code of Virginia, include:

Making any complaint to his employer or any other person under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
Instituting or causing to be instituted any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
Testifying or intending to testify in any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
Cooperating with or providing information to the commissioner during a worksite inspection; or
Exercising on his own behalf or on behalf of any other employee any right afforded by the safety and health provisions of Title 40.1 of the Code of Virginia.

Here is a link to the Office of Whistleblower Protection with the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) program:

Office of Whistleblower Protection

As noted in the above link:

Workers in Virginia have the right to complain to VOSH and seek an investigation of alleged workplace safety and health retaliation. Virginia Code §40.1-51.2:1 and -51.2:2 authorizes VOSH to investigate employee complaints of employer retaliation against employees who are involved in safety and health activities protected under the Virginia laws, standards and regulations.

16VAC25-220-90.B provides as follows:

No person shall discharge or in any way discriminate against an employee who voluntarily provides and wears the employee’s own personal protective equipment, including, but not limited to, a respirator, face shield, gown, or gloves, provided that the PPE does not create a greater hazard to the employee or create a serious hazard for other employees. In situations where face coverings are not provided by the employer, no person shall discharge or in any way discriminate against an employee who voluntarily provides and wears the employee’s own face covering that meets the requirements of this standard, provided that the face covering does not create a greater hazard to the employee or create a serious hazard for other employees. Nothing in this subsection shall be construed to prohibit an employer from establishing and enforcing legally permissible dress code or similar requirement addressing the exterior appearance of personal protective equipment or face coverings. (Emphasis added).

In addition, in situations where face coverings are not provided by the employer, employees who voluntarily provide and wear their own face covering or other PPE that meets the requirements of this standard may do so and are protected from discharge or other form of discrimination, provided that the face covering does not create a greater hazard to the employee or create a serious hazard for other employees.

NOTE: Section 1910.134(c)(2)(ii), of the Respiratory Protection Standard requires employers to provide certain information contained in Appendix D of the respiratory protection standard^[1] to employees who wear respirators, such as N95 filtering facepiece respirators, on a voluntarily basis. Federal OSHA has also published a letter of interpretation regarding this requirement:

https://www.osha.gov/laws-regs/standardinterpretations/2006-02-06-0.

[1] https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134AppD