PSA: Virginia DOLI Amends COVID Workplace Standard

As the governmental response to COVID-19 evolves, so do the various standards that apply to employers.  Effective September 8, 2021, the Virginia Department of Labor and Industry superseded its earlier permanent workplace standard with a new standard.

In many ways, the new standard simplifies compliance because it gets rid of what I believed to be overly confusing workplace classifications into risk levels and simply applies the new standard to all workplaces regardless of how they would have been classified.  Some key points to keep in mind regarding the new standard are the following (with the recommendation that all employers read and understand the text of the standard):

• Masks:  All unvaccinated employees must wear masks in all public, common, or shared workspaces with certain exceptions.  These exceptions include when an employee is alone in a room/office, when eating, certain medical conditions, and where it is important that the mouth can be seen (such as communication with the deaf).  Vaccinated employees need not mask up unless working in a high or substantially transmission area per the CDC Data Tracker.
• Vaccination Requirement:  As of now, the DOLI does not require employee vaccinations.  However, employers will need to have a way to determine vaccination status to comply with other parts of the standard.
• Reporting and Non-Discrimination:  Employers have to have a way for employees to report violations of the new standard and cannot discriminate against those employees seeking to enforce the standard.
• Cases:  Employers must have a policy in place to deal with confirmed cases.
• Protection of Certain Employees:  Employers must take steps to protect those employees that are either unvaccinated or not fully vaccinated (with social distancing, etc.), and protect those that self-identify as “otherwise at risk” (read immunocompromised).  This last category is tricky and will require the employee to report because the ADA bars an employer from asking about immunocompromised status.

These are just the highlights.  I recommend that you read the standard linked above, review the DOLI web page relating to this new standard, and consult with an experienced Virginia construction lawyer before taking any actions relative to COVID and your construction employees.

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