While the recent Biden Administration actions to combat COVID-19 have been getting much of the attention, Virginia’s Department of Labor and Industry (“DOLI”) has released the latest revised version of its COVID-19 safety requirements for employers in the Commonwealth. Despite the lack of press coverage for the new DOLI standards, these new regulations impose a whole new set of rules on Virginia employers – many of which have already gone into effect.
The good news is that DOLI builds in potential protections for employers who make good faith efforts to comply with the new DOLI requirements. For those businesses covered by the Federal government’s new vaccine requirements, some of DOLI’s new rules may also help them start preparing for implementing the Federal rules.
Berenzweig Leonard is here to help businesses tackle the new Federal and Virginia requirements, from gathering employee affirmations to drafting workplace “vaccine or test” rules and everything in between.
Here’s a list of the top things every Virginia Employer should know about the new DOLI requirements:
Masks are Back.
Every employer in Virginia needs to immediately start requiring employees mask up at work, regardless of vaccination status. Under the new DOLI regulations, every employer with a workplace in Virginia located in an area of high or substantial community transmission must require all employees to wear a facemask while in public, common or shared spaces at work – regardless of the employee’s vaccination status. Currently every city and county in Virginia falls in the “high community transmission” category, meaning this has far reaching effects.
No COVID-19 Vaccination Requirements, But Employers Need to Obtain Employee’s Vaccination Statuses.
While the new DOLI standards do not include the kinds of “vaccine or weekly testing” rules that were recently announced at the Federal level, DOLI is now effectively requiring every Virginia employer to obtain their employees’ COVID-19 vaccination statuses. This information is necessary for the mandatory risk assessment process, as businesses must take additional precautions to protect employees who are not fully vaccinated. DOLI has stopped short of requiring proof of vaccination (such as the CDC COVID-19 Vaccination cards), meaning written affirmations from employees are likely sufficient for compliance.
New Policies on Handling Suspected or Confirmed COVID-19 Cases at Work
All Virginia employers need to implement new policies and procedures on preventing the spread of COVID-19 at work. These new policies include a variety of procedures for responding to suspected or confirmed COVID-19 cases at work. For example, businesses with a confirmed COVID-19 case must notify other potentially exposed employees (and others) of their exposure while also protecting the infected employee’s identity. In cases where there are more than 1 confirmed COVID case within a certain time period, employers are also required to file reports with certain state agencies.
New Requirements to Protect Employees Who Are Not Fully Vaccinated Against COVID-19
Employers now need to take additional steps to prevent the spread of COVID-19 with employees that are not fully vaccinated against COVID-19. All employers need to ensure physical distancing is maintained for these employees while at work, and require them to wear masks at work even if they are not in areas of high or substantial community transmission.
Employees who are not fully vaccinated and in close contact with other unvaccinated or at-risk employees, or members of the public, play a major role in determining if a workplace is high risk. Every employer needs to assess the level of risk. High-risk workplaces may need to take extensive mitigation and prevention steps to comply with the new regulations.
Additionally, high-risk employers with more than 11 employees who are not fully vaccinated against COVID-19 must begin instituting and completing new specific training by November 7, 2021.
“Otherwise At-Risk Employees”
The new DOLI regulations also includes new protections for certain classes of employees, including fully vaccinated employees who are considered “otherwise at-risk” because they qualify as immunocompromised. This is an especially tricky area of the regulations due to the potential exposure under the ADA. Employers should not, in any way, demand employees disclose if they are “otherwise at-risk” or immunocompromised. Under the ADA, it is up to the individual employees to come forward and disclose these kinds of medical conditions. Employers should continue to wait for employees to choose to make these disclosures in order to avoid any violation of the ADA.
Anonymous Reporting and Employee Protections
All employers need to set up a way for employees to anonymously report any violations of the new DOLI regulations. Additionally, employees who complain – publicly or privately – about COVID-19 infection control are protected from discriminatory or retaliatory action under the new regulations.
There are also protections for employees who choose to wear masks or additional PPE, unless otherwise required, and for employees who refuse to do certain work due to a reasonable fear of illness or death.