Recent Changes to Virginia’s Final Permanent Standard for COVID-19

[clear]Virginia employers face additional hurdles as the Safety and Health Codes Board, a subset of the Virginia Department of Labor & Industry, and Governor Northam finished their months-long public review of January’s Final Permanent Standard (FPS). The resulting revisions took effect on September 8, 2021.

For information about the Executive Orders from the Biden Administration regarding vaccine mandates among federal employees, federal contractors, and large employers (100+ employees), please see our companion article "Executive Orders and Vaccine Mandates."

Recent Changes to Virginia’s Final Permanent Standard

One of the significant changes is that the FPS provides a clear safe harbor for employers that follow the CDC guidelines, whether mandatory or non-mandatory, instead of the FPS. The FPS deleted the requirement that the CDC guideline must provide equal or greater protection than provided by the FPS.

Another significant change in the FPS is that it compels employers to treat vaccinated and unvaccinated employees differently. As written, the FPS requires that employers implement policies and procedures that ensure unvaccinated or otherwise at-risk employees, but not vaccinated employees, observe peak-pandemic-type protocols, such as physical distancing and having totally closed or segregated common areas.

If a workforce is entirely vaccinated, as many medium and large workplaces may become following the Biden Administration’s vaccine mandate, the compliance burden will be significantly lessened. The FPS does not prohibit employers from requiring proof that an employee is fully vaccinated. Also, it allows employers to rely on an employee’s representation that they are fully vaccinated.

Employers must have a policy ensuring compliance with 16VAC25-220-40 (“Mandatory requirements for all employers”). Compliance is achieved by the employer’s good faith enforcement of the policy and resolution of complaints.

Here are some key features of the policy:

1. must have an anonymous complaint component;
2. must have a component ensuring unvaccinated/otherwise at-risk employees physically distance;
3. must close or segregate common areas based on vaccination status;
4. can relax the January FPS disinfecting requirement (only cleaning with soap, basically, is required—not the more burdensome “disinfecting”) in common areas, breakrooms, lunchrooms only once per shift when no suspected or confirmed COVID case has been in the area;
5. must require unvaccinated employees to mask when sharing a vehicle and continue to follow the FPS vehicle-sharing rules, unless (and this seems to be an employer’s choice) an employee is alone in a vehicle or just with co-workers who live together;
6. must require unvaccinated employees to mask, with some exceptions;
7. allows employers to track its new (relaxed) rules, which generally require different levels of cleaning and disinfecting in areas where infected persons have been (if less than 24 hours, clean & disinfect; after 24 hours, clean; after 3 days, nothing beyond regular cleaning practices);
8. must require at least once-per-shift cleaning (not disinfecting) of common spaces, high traffic surfaces, doors unless no suspected or confirmed COVID cases have been in an area, in which case cleaning once per day is fine; and
9. need not require shared tools, equipment, workspaces, and vehicles to be cleaned prior to transfer from one fully vaccinated employee to another.

The FPS also updated its return to work rules. Confirmed or suspected COVID cases (vaccinated or not) must be sent home and only allowed back when the employee has provided a negative PCR test or in accordance with guidance from a licensed healthcare provider, a VDH public health professional, or the CDC’s Isolation Guidance.

If an employee has a known exposure, the FPS requires the employee to follow any testing or quarantine guidance provided by a VDH public health professional. Employers shall not require employees to pay for the cost of COVID-19 testing for return to work determinations.

Finally, the FPS implements updates to the infectious disease preparedness and response plans that were required under the previous standard and the associated training requirements. These updates mainly apply to employers in healthcare settings and all employers with 11 or more employees. It is important to note that under the revisions employees who are fully vaccinated do not count toward the 11 employee requirement. All qualifying entities must update their plans by October 8, 2021, and implement any additional training by November 7, 2021.

With the recent flurry of federal and state activity, there are no one-size-fits-all compliance solutions. Our team has been evaluating employers’ individual needs, which is what these recent changes demand.