Article At A Glance:
- If you are a Virginia employer or work in Virginia, these new COVID-19 legal requirements summarized below now apply to you.
- In sum, these requirements heavily incentivize employee vaccination, but do not mandate it.
- Employers should be especially mindful of treating employees differently based on medical decisions, because treating employees differently has implications under Title VII of the Civil Rights Act of 1984 (religious beliefs) and under the Americans with Disabilities Act (disability status). Employees and employers should note that these new requirements are layered along with other mandates, including those applicable to Federal government contractors, and the anticipated OSHA rule for employers with 100 or more employees, requiring vaccination or a weekly test for COVID-19.
- These new rules were adopted by the Virginia Department of Labor and Industry (“DOLI”) Safety and Health Codes Board on August 26, 2021. The rules are contained in a Virginia Occupational Safety and Health (“VOSH”) Standard for Infectious Disease Prevention (“Standard”), pursuant to Va. Code §40.1-22(6a) addressing occupational exposure to the SARS-CoV-2 Virus That Causes COVID-19, 16 VAC 25-220.
The new COVID-19 requirements for Virginia workplaces are as follows:
- No Vaccine Mandate Required: Virginia employers are NOT required to mandate vaccinations for employees under these state requirements.
- There’s no Virginia law that prevents employers from making their own mandates for employees, or for asking employees for their vaccination status. Employers can rely on an employee’s certification that they are vaccinated without requiring a vaccine card.
- Vaccination status is considered private health information under the Americans with Disabilities Act (“ADA”).
- As with any medical inquiry, employers should exercise caution when requesting medical information from employees. Vaccination status inquiries can raise legal issues surrounding religious beliefs[1] and disability status.[2]
- Employers are required to implement protocols for physical distancing for its employees that are “not fully vaccinated and otherwise at-risk,” but then the regulations also state that all employees should not share work vehicles or other transportation, employees should maximize physical distancing during travel, fresh air should be maximized during travel, and face masks should be provided by the employer and worn by employees.
- Face Masks Required, With Certain Exceptions: Face masks are required to be provided by employers and worn by employees indoors. These requirements loosen for vaccinated employees in areas of low to moderate community transmission. There are also certain exceptions for those that are not medically able to wear masks, when it is important to see someone’s mouth (such as when communicating with a person that is hard of hearing or deaf), when wearing a mask presents a health hazard to the employee, or when an employee is alone in a room.
- Natural Immunity Not Recognized: The revised Standard does not currently recognize employees’ natural immunity for workplace safety purposes. The Standard explicitly states that natural immunity, which can be established through serological testing, “shall not be used to make decisions about returning employees to work…” 16VAC25-220-40(B)(3).
- Written COVID-19 Policy with Anonymous Complaint Mechanism: employers must implement a written COVID-19 workplace policy that includes a place to send anonymous employee complaints about policy violations.
- Self-Assessment: The policy should instruct employees how to do a self-assessment for COVID-19 symptoms.
- Reporting, Quarantine + Return to Work Policy: The policy should instruct employees + third parties (subcontractors, independent contractors, etc.) what to do if they experience COVID-19 symptoms, how to report that to the employer, and return to work protocols. An employee can telework with COVID-19 symptoms.
- Reporting Protocol: Employers shall implement protocol for notification about positive COVID-19 tests for those present at the workplace 2 days prior to symptom onset until 10 days after onset or positive test.
- Employers must report to close contacts, the building owner, and other applicable employers who had possible close contacts within 24 hours of discovery of the possible exposure, and keep confidential the identity of the confirmed COVID-19 person.
- If there are 2 or more positive COVID-19 cases within a 14 day period, the employer must report these cases to the Virginia Department of Health.
- Workplace Exposure Assessment: employers must conduct a workplace exposure assessment to see which job tasks can potentially expose employees to COVID-19.
- Subcontractors + Third Parties: Subcontractors and third parties that are affiliated with employers need to be instructed on the employer’s COVID-19 protocols in the event of a suspected COVID-19 case.
New requirements only apply to certain higher-risk workplaces:
- Infectious Disease Preparedness and Response Plan: As of October 8, 2021, employers with higher-risk workplaces (where employees are in close contact with others), employers in healthcare, and employers with 11 or more unvaccinated employees must have a written infectious disease preparedness and response plan and train employees on the plan.
- Updated training: By November 7, 2021, employers with higher-risk workplaces must provide COVID-19 training as it pertains to COVID-19 workplace safety and the employer’s protocols.
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- The new Virginia requirements further distinguish between vaccinated and unvaccinated employees by allowing employers to skip training for vaccinated employees, and just provide them with written information.
[1] Title VII of the Civil Rights Act of 1964 (“Title VII”) provides certain employees with a legal right to seek religious exemptions to employer policies, including vaccination mandates.
[2] The Americans with Disabilities Act (“ADA”) provides certain employees with a legal right to request reasonable accommodations from their employer as it pertains to performing their essential job functions.
