Virginia Is First Again: COVID-19 Workplace Safety Rule Becomes Permanent

Josh SchmandJosh Schmand

This past summer, Virginia became the first state to pass mandatory workplace standards for employers to control, prevent, and mitigate the spread of COVID-19 to and among employees and employers. Those emergency workplace safety standards were temporary and were set to expire later this month, on January 26, 2021. With the expiration date fast approaching, on January 13, 2021, the Virginia Safety and Health Codes Board enacted a new rule, effective January 27, 2021, extending the protections permanently. This new permanent rule, like the temporary emergency one, is the first of its kind in the country.

The requirements in the new permanent rule are mostly the same as before, and you can read more about those safety standards for different jobs (which are based on risk level of exposure), physical distancing mandates, reporting obligations, return to work procedures, training requirements, infectious disease preparedness and response plans, and penalties here and here. Two key changes in the new rule that are worth highlighting deal with employer reporting obligations and return to work procedures:

  • For reporting, previously, the emergency temporary rule required employers to contact the Virginia Department of Health within 24 hours of the discovery of a positive case of COVID-19. In the new permanent rule, the notification requirement was changed so that now employers only need to contact the Virginia Department of Health when their worksite has had two or more confirmed cases of COVID-19 of their own employees present at the place of employment within a 14-day period who have tested positive for COVID-19 during that period.
  • For returning to work, previously, the emergency temporary rule allowed for employees who were known or suspected to be infected with COVID-19 to return to work after 10 days from when the symptoms first appeared or after they received two consecutive negative tests. In the new permanent rule, the testing based strategy for returning to work was eliminated, and only the symptoms based strategy remained. Specifically, symptomatic employees known or suspected to be infected with COVID-19 cannot return to work until the following three conditions have been met: (1) being fever-free (less than 100.0° F) for at least 24 hours, without the use of fever-reducing medications; (2) improvement of respiratory symptoms, such as cough and shortness of breath; and (3) 10 days have passed since the symptoms first appeared. And, employees known to be infected with COVID-19 who never develop signs or symptoms are excluded from returning to work until 10 days after the date of their first positive RT-PCR test.

Despite significant opposition to the new permanent rule, ultimately the Virginia Safety and Health Codes Board determined that the continuation of the workplace safety standards were still needed to prevent further COVID-19 outbreaks, including among workers who will choose not to be vaccinated once they are eligible. A discussion on employers considering mandatory COVID-19 vaccine policies can be found here.

While the new Rule is “permanent,” within 14 days after Governor Ralph Northam declares an end to the Commonwealth’s COVID-19 State of Emergency, the Virginia Safety and Health Codes Board will have to notice a meeting (not actually have the meeting) to determine whether there is a continued need for the workplace safety standards.

Since Virginia’s workplace safety standards are not going anywhere soon, employers who have not already done so need to develop policies and procedures for employees to report COVID-19 symptoms and subsequently return to work, as well as implement training presentations and written infectious disease preparedness and response plan. And for those employers who previously brought their policies, practices, and procedures into compliance with the emergency temporary requirements, they now have to review and revise them to ensure compliance with the new rule.

For more information, contact Josh at 301-347-1273 or jcschmand@lerchearly.com.

D.C. Enacts New Law Requiring Sexual Harassment Training by Employers of Tipped Employees (and Associated Reporting Requirements); Posting; and Notice to Employees of Employment Laws

The District of Columbia enacted important legislation which mandates sexual harassment training for tipped employees (and associated harassment reporting requirements for employers with tipped employees). The new law also mandates postings in the workplace as well as notice to employees of various employment laws.

Overview

By way of background, the District of Columbia, in 2018 enacted the Tipped Wage Worker Fairness Amendment Act (the “Act”). The Act contained a provision which required that D.C. provide funding before the new law would take effect. This summer, D.C. repealed the funding restriction. As a result, the Act took effect on October 30, 2020. Key components of the Act are summarized below.

Employers of Tipped Employees Must Conduct Workplace Harassment Training

The Act requires that the D.C. government provide a sexual harassment training course for employees of businesses that have tipped employees (or a certified list of providers who may provide such training).

New employees who were hired before the law became effective must be trained within two years of the effective date, either online or in person. New employees who are hired after the new law became effective must receive the training within 90 days of hire unless the employee participated in training within the prior two years. Business operators, owners, and managers must be trained every two years. Like employees, business operators and owners may participate in the training either online or in person. Managers, on the other hand, must be trained in person. The law imposes upon employers a requirement to submit a certificate of training to the D.C. Office of Human Rights within 30 days after each employee, manager, owner or operator has completed the training.

Reporting Requirements for Training of Tipped Employees

Importantly, the Act imposes upon employers of tipped employees certain reporting requirements as follows:

  • File with the D.C. Office of Human Rights a copy of the employer’s policy outlining how employees can report incidences of sexual harassment concerns to management and to the D.C. government.
  • Distribute the sexual harassment policy to employees and post the policy in a conspicuous place accessible to all employees in or about the employer’s premises.
  • Document incidences of sexual harassment reported to management, including whether the reported harassment was by an owner, operator, managerial employee, or non-managerial employee.
  • Report to the D.C. Office of Human Rights on a yearly basis the number of sexual harassment allegations reported to management, and the total number of reported harassers who were owners, operators, managerial employees or non-managerial employees.

Reporting Requirements for Postings and for Information Which Must Be Provided to Employees

Within 120 days of the effective date (October 30, 2020) of the Act, the Mayor’s Office is required to create a poster which summarizes the rights of D.C. employees under numerous D.C. employment statutes, and also create a website which clearly and precisely describes the rights of employees under each of these employment laws. Thereafter, employers are required to print copies of the information posted by the District of Columbia on its website and organize it into a single source, such as a binder. Employers must make a copy of the binder available at every location where the summary poster is exhibited. Furthermore, the law requires employers to update the binder at least monthly to make sure that information is accurate, up-to-date, and matches the information that is on the website of the Mayor’s Office. Significantly, the D.C. government can impose upon employers a fine of $100.00 for each day that an employer fails to comply with the binder and posting requirements.

Takeaways

The Act has important consequences for employers in the District of Columbia, which can be found in the rest of the article on our website: https://www.lerchearly.com/news/dc-enacts-new-law-requiring-sexual-harassment-training-by-employers-of-tipped-employees.

For more information, contact Marc at mrengel@lerchearly.com or Nida at nkanwal@lerchearly.com.