Individual states’ safety agencies have undertaken the development of their own workplace safety rules in response to potential hazards from COVID-19 as the Occupational Safety and Health Administration (OSHA) has declined to promulgate specific standards and instead relied on existing regulations and guidance.  Specifically, Virginia recently published a temporary emergency COVID-19 rule, while Oregon has been holding stakeholder meetings to develop its own, similar emergency standard.  Washington, meanwhile, has created a trigger for direct enforceability of state-issued restrictions and prohibitions on employer operations by its workplace safety agency.

What is the status of Virginia’s rule?

On July 17, 2020, the Virginia Department of Labor and Industry (DOLI) Occupational Safety and Health (VOSH) Program published §16 VAC 25-220, Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (VA Rule).  In doing so, Virginia is the first state in the nation to promulgate regulatory requirements specific to the hazard of COVID-19 in the workplace. Virginia Gov. Ralph Northam had announced the state’s plan to issue temporary rules on July 15, 2020, stating that “in the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements.”

While the VA Rule was published by VOSH on July 17, 2020, its requirements are not effective until published in a Richmond, VA newspaper, expected the week of July 27, 2020.   General training requirements will take effect 30 days after the effective date, and infectious disease preparedness and response plan requirements will take effect 30 days after that.   The VA Rule will expire when one of four events occurs: (1) six months pass from the effective date, (2) expiration of Governor’s state of emergency, (3) it is superseded by a permanent standard, or (4) when it is repealed by the Virginia Safety and Health Code Board.

Who does the Virginia Rule apply to and how does it affect existing guidance?

The VA Rule applies to all Virginia employers and is “intended to supplement and enhance existing laws, rules, regulations, and standards,” while not conflicting with any requirements or guidelines established by Virginia executive order or order of public health. The VA Rule states that if there is a conflict, the more stringent requirement shall apply. However, to the extent that an employer complies with a recommendation contained in U.S. Centers for Disease Control (CDC) guidelines that provide equivalent or greater protection, the employer’s actions shall be considered in compliance with the VA Rule.

What does the Virginia Rule require?

The VA Rule builds on existing OSHA guidelines, and includes the following general requirements, among others:

All employers – All employers, regardless of risk level, are required to conduct the above risk assessment and implement the following measures:

    • “Lower” exposure risk hazards or job tasks are those not otherwise classified who have minimal occupational contact with other employees, other persons, or the general public, or are able to achieve minimal occupational contact through the implementation of engineering, administrative and work practice controls.
    • “Medium” exposure risk hazards or job tasks are those not otherwise classified as “very high” or “high” exposure risk in places of employment that require more than minimal occupational contact inside six feet with other employees, other persons, or the general public who may be infected with SARS-CoV-2, but who are not known or suspected to have COVID-19 (e.g., food processing plants, retail stores, etc).
    • “High” and “very high” classifications apply only to medical and healthcare workers.

All employers – All employers, regardless of risk level, are required to conduct the above risk assessment and implement the following measures:

    • Employee self-monitoring and policies and procedures for employees to report symptoms;
    • Bar employees with known or suspected cases from work until cleared and implement symptom- or test-based return-to-work procedures (NOTE: employers may not use serologic test results to make decisions about employee status);
    • Flexible sick leave policies;
    • Coordination with contractors and agencies regarding COVID-19 policies;
    • Implement specific notification actions if any person present at the worksite within the previous 14 days tests positive, including employees, other employers, building owners, the Virginia Department of Health, and VOSH (for three or more employees within a two week period);
    • Employee access to their exposure and medical records;
    • Social distancing policies and procedures and restricted access to common areas;
    • Compliance with respiratory protection and personal protective equipment (PPE) standards when necessary, including in vehicles or social distancing cannot be maintained, unless detrimental to health;
    • Compliance with sanitation and disinfection standards;
    • Compliance with mandatory requirements of any applicable Virginia executive order or order of the public health emergency; and
    • Initial and refresher training.

“Lower” Exposure Risk Jobs – Employers engaged in “lower” risk work are required to implement the following controls:

    • Installation of floor to ceiling physical barriers;
    • Telecommuting and staggered work shifts;
    • Mandatory physical distancing; and
    • Written or oral information to employees on COVID-19 and measures to minimize exposure.

“Medium” Exposure Risk Jobs – Employers engaged in “medium” risk work are required to implement the following controls:

    • Engineering controls, specifically air handling systems’ compliance with applicable industry codes;
    • Administrative and work practice controls, such as screening, physical distancing, and flexibility in work requirements and strategies;
    • COVID-19 hazard assessment and appropriate PPE;
    • Employers with 11 or more employees must develop and implement an Infectious Disease Preparedness and Response Plan, including specific elements; and
    • Training for employees on COVID-19 and regulatory requirements, including the employer’s Infectious Disease Preparedness and Response Plan.

What is the status of Oregon’s rule?

During the week of July 13, 2020, Oregon OSHA (OR OSHA) conducted stakeholder meetings on the development of its own workplace safety rule to address COVID-19.  OR OSHA plans to issue separate emergency temporary rules to general industry and the healthcare industry, to later be replaced by permanent rules.  The temporary rules will last for 180 days after the adoption date, which is anticipated September 1, 2020. The permanent rules are intended to go into effect upon the expiration of the 180-day temporary rules.  OR OSHA plans to circulate a draft of the temporary rule for stakeholder comment on approximately August 24, 2020; however, the comment period will be abbreviated. OR OSHA announced there will be a more formal comment period and physical impact analysis for the permanent rule.

What do we know about Oregon’s rule?

During stakeholder meetings, OR OSHA responded to manufacturing and processing industry concerns regarding the implications of promulgating such a rule.  The agency took the position that it had clear authority to promulgate such a rule, and that the safety benefits would outweigh any negative effects on industry.

In addressing questions presented during the stakeholder meetings, OR OSHA stated that the new rule would address the issue of face coverings and, if at all possible, avoid imposing new costs on employers.  OR OSHA also indicated that it would be looking to existing Oregon Health Authority guidance, federal OSHA standards, and the new VA standard as the starting point for the new rule. For purposes of moving forward with notice and comment, OR OSHA issued general questions to stakeholders for feedback in developing its rule, which are included in an “Initial Issue Paper on Oregon OSHA Infectious Disease Rulemaking for the General Workplace” recently published by OR OSHA.

How has Washington State regulated COVID-19 in the workplace?

The Washington Department of Labor & Industries (L&I) responded to the COVID-19 pandemic in a simpler manner: by amending the emergency rule (WAC 296-800-14035 in Chapter 296-800 WAC) related to prohibited business activities under RCW 43.06.220.  This amendment creates a trigger for L&I enforcement where employers violate prohibitions or restrictions on business operation.  The amended rule contains the following revisions, which became effective on July 8, 2020 and expire on November 5, 2020:

  • Employers must not allow employees to perform work where a business activity is prohibited by an emergency proclamation.
  • Employers must comply with all conditions for operation required by emergency proclamation, including Safe Start phased reopening requirements for all business and any industry specific requirements.

Under WAC 296-800-14035, violations of emergency proclamations are subject to workplace safety citations. The penalty structure for citations issued under the emergency rule track the federal penalty structure established by OSHA under 29 C.F.R. 1903.15, with a minimum penalty of $100, a maximum statutory penalty for a “serious” violation of $13,494, and a maximum penalty for “willful” or “repeat” violations of $134,937.