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Tuesday, 21 July 2020 23:13

Virginia Becomes First State to Adopt COVID-19 Workplace Safety Mandates

Written by Morrison Foerster, JD Supra

Index

Employers that comply with Center for Disease Control guidelines that provide the same or equal protection as the regulation will be considered compliant. 

 

Enforcement/Penalties

 

VOSH will be responsible for the enforcement of the new regulation. Employers that violate these new mandates can face fines of up to $130,000 for willful or repeated violations, with smaller fines for lesser violations. VOSH will also consider goodfaith efforts to comply with the regulations and CDC guidance when determining whether an employer is in compliance.

 

The regulation also prohibits employers from retaliating against employees who raise reasonable concerns about COVID-19 infection risks in the workplace, whether that concern is raised with the employer, co-workers, government agencies or the media, including through social media.

 

While the current version of the regulation does not provide employees with a private right of action for retaliation or violations of the regulation, as of July 1, Virginia’s whistleblower protection law provides a private right of action for retaliating against employees for reporting any violation of federal or state law. 

 

Practical Implications

 

In light of this new regulation, Virginia employers may want to reassess whether remote work is possible. If an option exists for most or all employees to telework, employers may want to allow for such telework while this rule is in effect. Even if full telework is not possible, staggered shifts or days could also mitigate some of the compliance and logistical challenges created by the new rule.

 

Where having staff onsite is necessary for the business, employers should review their current COVID-19-related practices and procedures toensure they comply with the new regulation for any employees reporting to the workplace. Employers that determine their workplace is at the higher risk levels of exposure will need to consider putting more extensive mitigation efforts in place.

 

Given the inaction at the federal level, more states are likely to follow Virginia’s lead. A number of other states have their own OSHA plans, including California, Maryland, Oregon and Washington. Interestingly, OSHA retains the right to revoke state plans and require that only federal standards be applied. Whether it will do so if more states enact regulations similar to Virginia remains to be seen. 

 

We thank JD Supra for reprint permission. 


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