8 Things Small Businesses Need To Know About Virginia’s COVID-19 Emergency Temporary Standard

Virginia’s COVID-19 Emergency Temporary Standard Takes Effect

On July 27, 2020, Virginia’s COVID-19 workplace safety standard took effect. It was originally published for review on July 15th and since then, we’ve been working to condense the numerous rules within it into a workable summary.

The standard imposes several new rules on all Virginia employers, with additional rules applying to those workplaces considered to be above low risk. The standard puts much of the onus for designing safety protocols onto employers. This is both a good and a bad thing: On one hand, we have the flexibility to design practices that work for our particular workplaces; on the other hand, well, it is left empty of any firm guidance that what we design will be compliant.

The standard is very comprehensive and has some significant burdens and hurdles for employers to manage. That is, the new rules impose some potentially difficult safety standards for employers to attempt to implement and enforce. Many of the new safety requirements will likely seem tedious initially, but like many workplace changes, the new will become part of our regular routines. Other, more concerning changes pose more significant risks as they appear to give an employer responsibility for conduct that is not necessarily in the employer’s direct control. This arises from the Standard’s frequent use of the word “ensure” concerning the implementation and consistent observance of a safety standard.

8 Things Small Businesses Need To Know

  1. The most important to me in the Standard is that your compliance obligation is based on your risk level. Compliance obligations increase as the risk level increases. Importantly, your workplace might have multiple risk levels and therefore you may have different areas requiring different precautions and procedures. If the workplaces aren’t sufficiently separate then you should treat them all as part of the higher of the applicable risk levels.
  2. Employers do not have to conduct contact tracing.
  3. These regulations apply to every employer, employee, and place of employment in Virginia with one exception: the federal government is not subject to the regulations and those employed by the federal government are not protected by them.

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  4. All employees are protected, including temporary or contract employees even if those employees are provided to your business by another business.
    According to DOLI, “employees” include the following people if they are working on-site and exposed to the hazard:

    • An employer’s family members
    • Shareholders
    • A partner in a partnership
    • Officers of the company (president, vice president, etc.)

    Self-employed people/sole proprietors are not “employees” as long as they are the only ones exposed to a hazard

  5. Employers cannot fire or “in any way discriminate” against employees who exercise their Emergency Standard Rights
  6. Employers may not fire or discriminate against employees who:
    Provide/wear his or her PPE if the employer does not provide it, as long as the employee’s PPE does not create a greater hazard to the employee or a serious hazard to other employees. *note, the Emergency Standards do not specify the meanings of “greater” or “serious” regarding hazards.
    Raise a reasonable concern about the employer’s compliance with the Emergency Standard to:

    • the employer or employer’s agent
    • other employees
    • a government agency
    • the general public (including social media posts or other online forums)
  7. Employees may refuse to do work or enter a location they feel is unsafe. Employers who fire or discipline an employee who refused to work or enter a location must do so according to § 16 VAC 25-60-110 and other applicable laws and regulations.
  8. Employees who believe their employer violated their Emergency Standard rights have 60 days from the date the alleged violation occurred to file a complaint with DOLI.

What you read above is only a summary of some of the key points of Virginia’s COVID-19 Emergency Temporary Standard. After you read this, if you have any questions, please reach out to me and we can work together to design your plan.

The information and material provided here are for informational purposes only. This information is not legal advice and does not create an attorney-client relationship between Way Law and anyone who reads it. You should always consult with an attorney before taking action on any legal issue.

Additional Resources:

DOLI has also provided materials useful for preparing compliance plans. These include:

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