NEW March 23, 2022: Frequently Asked Questions
Yes, with certain exceptions.
Federal OSHA regulations, which have been adopted by VOSH for General Industry and Construction, 1910.132, 1910.134, 1926.95 and 1926.103 allow an employer to require FDA approved face masks, surgical masks (both of which qualify as PPE) or respirators (e.g., N95) to mitigate the spread of COVID-19 in the workplace.
In addition, Virginia is generally considered an “employment at will” state and employers are permitted to establish safety and health rules that go beyond VOSH regulations, or VOSH’s Draft Guidance Document. That document notes that:
Regardless of any information contained in this guidance document, employers have the legal right to adopt safety and health workplace rules for employees that are more stringent than this guidance. § 40.1-51.1.A Duties of Employers.
There are some exceptions where VOSH Whistleblower protections under Va. Code §40.1-51.2:1 can apply in situations where an employer requires an employee to wear a face mask, surgical mask or respirator to mitigate the spread of COVID-19:
EXCEPTIONS FOR “GREATER HAZARD” ISSUES
• If an employee alleges that wearing a mask would create a greater hazard – such as working in an environment where non-flammable materials are required
• Where the inability of employees wearing face masks to communicate coherently during a potentially hazardous job task could contribute to the greater hazard of a serious workplace accident
• Where there is a potential for the greater hazard of heat illness to occur where an employee’s use of a face mask contributes to a dangerously elevated core body temperature
EXCEPTION FOR MEDICAL ACCOMODATIONS
Employees seeking a medical accommodation from a safety or health workplace rule 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
EXCEPTION FOR RELIGIOUS ACCOMODATION (current VOSH FAQ)
Employees seeking a religious accommodation from a safety or health workplace rule 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
HOW TO FILE A VOSH WHISTLEBLOWER COMPLAINT
Employees wishing to file a VOSH Whistleblower complaint can do so at: https://doli.dev.sitevision.com/whistleblower-submission/
Overview
NEW! COVID-19 case reports may be voluntarily filed through the Virginia Department of Health’s (VDH) Online Reporting Portal. The new online reporting portal allows employers to submit up to 10 Covid-19 positive cases.
To report a Workplace Fatality or Severe Injury use the Serious Event Reporting form.
Voluntary Reporting of COVID-19 Positive Cases
MARCH 22, 2022
NOTE: The Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220, has been revoked by the Virginia Safety and Health Codes Board effective March 23, 2022.
Voluntary COVID-19 Outbreak Reporting Request
VDH requests that employers continue to report COVID-19 outbreaks to VDH on a voluntary basis 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 SARS-CoV-2 virus during that 14-day time period.
After the initial outbreak report (three or more cases), VDH requests employers continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed. VDH may follow-up with the business for additional information or requests.
After the outbreak is closed, VDH requests that subsequent identification of three or more cases of COVID-19 be reported, as above.
Please note that voluntarily reported outbreak information at the employer or case level will not be shared with the Virginia Department of Labor and Industry’s Virginia Occupational Safety and Health Compliance (VOSH) Divisions.
Statistical and other general information that does not reveal the identities of particular employers or employees may be shared with VOSH.
Be prepared to supply: Business name; names and job position of each employee affected; location and timeline of each positive case, brief explanation of the circumstances associated with the infection; contact person and phone number, etc.
COVID-19 and HIPAA: Disclosures to VOSH and VDH – 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 privacy statute or implementing regulations. Additionally, the U.S. Department of Health and Human Services allows covered entities and business associates to disclose protected health information without authorization for specified public health purposes.
Reporting COVID-19 positive cases:
MARCH 22, 2022
NOTE: The Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220, has been revoked by the Virginia Safety and Health Codes Board effective March 23, 2022.
Voluntary COVID-19 Outbreak Reporting Request
VDH requests that employers continue to report COVID-19 outbreaks to VDH on a voluntary basis 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 SARS-CoV-2 virus during that 14-day time period.
After the initial outbreak report (three or more cases), VDH requests employers continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed. VDH may follow-up with the business for additional information or requests.
After the outbreak is closed, VDH requests that subsequent identification of three or more cases of COVID-19 be reported, as above.
Please note that voluntarily reported outbreak information at the employer or case level will not be shared with the Virginia Department of Labor and Industry’s Virginia Occupational Safety and Health Compliance (VOSH) Divisions.
Statistical and other general information that does not reveal the identities of particular employers or employees may be shared with VOSH.
Archive of the Permanent Standard incorporates the following documents by reference:
Environmental Protection Agency (EPA) List N for use against SARS-CoV-2
Biosafety in Microbiological and Biomedical Laboratories” (Dec. 2009)
Archive of the Proposed VOSH Standard for Infectious Disease Prevention for COVID-19
VDH Interim Workplace Guidance and Recommendations for Increased Absenteeism/Sick Leave Policies
Coronavirus (COVID-19) Hazard Alert – English
Coronavirus (COVID-19) Hazard Alert – Spanish
Coronavirus (COVID-19) Overview
OSHA Guidance on Preparing Workplaces for COVID-19 – English
OSHA Guidance on Preparing Workplaces for COVID-19 – Spanish
Virginia Department of Health Coronavirus (COVID-19) FAQs
Centers for Disease Control Print Resources
Virginia Department of Health Coronavirus (COVID-19) Tracking Cases
News Release
Archive of the 16VAC25-220 Text of the Revised Regulation
Archive of the Training Documentation Form
Archive of the Nine Steps to Achieve COVID-19 ETS Compliance
Archive of the 16VAC 25-220 Training Powerpoint
Archive of the Hazard Assessment
- For COVID-19 related questions please consult the Archive of the VOSH Standard for COVID-19 Frequently Asked Questions
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- VOSH is addressing health and safety employees’ concerns related to COVID-19 with a phone/fax investigation. To file a Health or Safety Complaint please follow the link for assistance. File an online complaint
- For employees that have questions regarding unemployment, please contact the Virginia Employment Commission at http://www.vec.virginia.gov/
- For questions concerning payment of wage or child labor laws, please contact us at laborlaw@doli.dev.sitevision.com
NEW! Business Reopening Toolkit
NEW! Guidance from Federal OSHA to employers on returning to work
OSHA Workplace Exposure Posters
In an effort to help promote infection control methods in the workplace, Federal OSHA has created an informative poster. While not required to be posted, it is a good reminder to all employees on ways they can stay safe in the workplace.
OSHA Workplace Exposure Poster – English
OSHA Workplace Exposure Poster – Spanish
Consultation Newsletter
Coronavirus Newsletter – (first edition)
Industry Specific Guidance
Emergency Temporary Standard (ETS) Reference Material Archive
For the next 6 months we will be issuing violations under the ETS to companies for inspections opened on or before January 26th. This page has been created and will be maintained for dealing with citations made under the period of time that the ETS was in place.