Archive Page for the Final Permanent Standard For Infectious Disease Prevention For COVID-19 – Frequently Asked Questions

VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY

VIRGINIA OCCUPATIONAL SAFETY AND HEALTH PROGRAM

16 VAC 25-220, VOSH Standard for Infectious Disease Prevention, Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19.

Reporting COVID-19 positive cases: 16 VAC 25-220.B.7.e of the VOSH Standard provides that “The employer shall notify the Virginia Department of Labor and Industry (DOLI) within 24 hours of the discovery of two (2) or more employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.”

COVID-19 case reports must be filed through the Virginia Department of Health’s (VDH) online reporting portal. By using this portal, these case reports will ensure VDH and DOLI reporting compliance. The new online reporting portal allows employers to submit up to 10 Covid-19 positive cases.

IMPORTANT NOTICE:

Effective September 8, 2021, in accordance with the Virginia Department of Labor and Industry’s Virginia Occupational Safety and Health program VOSH Standard for Infectious Disease Prevention for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220-40.B.7.d and -40.B.7.e:

Notifications to the Virginia Department of Health (VDH), 16VAC25-220-40.B.7.d

Employers shall report to VDH within 24 hours of the discovery of two or more of its own employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

After the initial report of outbreak (two or more cases), employers shall continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed.

After the outbreak is closed, subsequent identification of two or more cases of COVID-19 during a declared emergency shall be reported, as above.

Notifications to the Department of Labor and Industry (DOLI), 16VAC25-220-40.B.7.e

Employers shall report to DOLI within 24 hours of the discovery of two or more of its own employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

A reported positive SARS-CoV-2 test does not need to be reported more than once and will not be used for the purpose of identifying more than one grouping of three or more cases, or more than one 14-day period.

Frequently Asked Questions

On January 13, 2021, the Virginia Safety and Health Codes Board adopted a VOSH Standard for Infectious Disease Prevention (“standard”) pursuant to Va. Code §40.1-22(6a) addressing occupational exposure to the SARS-CoV-2 Virus That Causes COVID-19, 16 VAC 25-220.

On August 26, 2021, the Board adopted revisions to the standard:

The Virginia Occupational Safety and Health (VOSH) program developed these FAQs to provide information and assistance to employers and employees regarding the standard’s requirements.

This document is organized by standard section number and is subject to revision.

§10 Purpose, scope, and applicability.

1. What industries and employers are covered by the standard?

The standard applies to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the VOSH program as described in §§ 16VAC25-60-20 and 16VAC25-60-30, including state and local government employers and employees.

NOTE: Federal OSHA retains jurisdiction over private sector maritime activities in Virginia. VOSH has jurisdiction of state and local government maritime related activities only.

2. Does the standard supersede other VOSH laws, standards, or regulations that may be applicable to COVID-19?

No. Section 10.C states that the standard is designed to supplement and enhance existing VOSH laws, rules, regulations, and standards applicable directly or indirectly to SARS-CoV-2 virus or COVID-19 disease-related hazards such as, but not limited to:

  • personal protective equipment,
    • respiratory protective equipment,
    • sanitation,
    • access to employee exposure and medical records,
    • occupational exposure to hazardous chemicals in laboratories,
    • hazard communication,
    • Va. Code §40.1-51.1.A

Should the standard conflict with an existing VOSH rule, regulation, or standard, the more stringent requirement from an occupational safety and health hazard prevention standpoint shall apply.

3. With the Safety and Health Codes Board's adoption of OSHA's Emergency Temporary Standard for healthcare services and healthcare support services, does the Virginia standard still apply to healthcare settings?

The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first. During the pendency of the ETS, the Virginia standard will not apply to those industries. When the ETS lapses, Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

4. If an employer complies with CDC guidance for its industry, do they have to comply with the standard?

Section 10.E was revised by the Safety and Health Codes Board on August 26, 2021 and took effect on September 8, 2021, and provides that:

  1. To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this chapter, the employer’s actions shall be considered in compliance with this standard. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

The intent of 16VAC25-220-10.E is to give employers the option to either comply with the requirements of a provision of the VOSH Standard or demonstrate as an alternative that they have actually complied with the mandatory and non-mandatory “recommendations” and “considerations” in a CDC publication addressing the same hazards, issues, requirements, etc., that are also addressed in a specific provision of the VOSH Standard.

NOTE: The VOSH Standard does not require employers to comply with any CDC publication language that is solely directed at assuring the safety and health of the general public. The focus of the VOSH Standard is employee safety and health, and the focus of 10.E is only CDC publications’ language that addresses specific provisions related to employee safety and health, occupationally-related hazards, issues, mitigation efforts, etc.

If the CDC publication the employer is relying on does not address requirements that are contained in the VOSH Standard (e.g., employee training, air handling systems, notifications to the Department and VDH of COVID-19 outbreaks, etc.), then the employer must comply with the VOSH Standard.

If the CDC publication the employer is relying on has been archived and is no longer being updated, it is not considered “current” under 10.E and it cannot be relied upon under by the employer in lieu of complying with the VOSH Standard (e.g., https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html, last updated May 7, 2021). Also, in cases where a CDC publication has become outdated without specifically being archived (e.g., when the CDC updated guidance on July 27, 2021 for fully vaccinated people to continue to wear face coverings indoors in areas of substantial or high community transmission), the most recent guidance by the CDC in other updated publications will be what governs.

An employer will not be subject to citation or penalty if they comply with the requirements of the VOSH Standard, even if a CDC publication were to include a more stringent requirement or “recommendation” than is provided for in the VOSH Standard.

As noted above, in order for an employer to take advantage of 10.E, it has to demonstrate that it is actually complying with language in CDC publications that could be considered both “mandatory” (e.g., “shall”, “will”, etc.) and “non-mandatory” (“it is recommended that”, “should”, “may”, “encouraged”, etc.). In other words, an employer would have to comply with a CDC “recommended” practice even if the CDC publication doesn’t “require” it.

As provide in 10.E, the Commissioner of Labor and Industry will consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

Here is an example of application of 10.E to language in Section 3 of the current CDC Guidance for Institutions of Higher Education (IHEs) (https://www.cdc.gov/coronavirus/2019-ncov/community/colleges-universities/considerations.html#section3, updates as of July 23, 2021):

“Administrators should encourage people who are not fully vaccinated and those who might need to take extra precautions to wear a mask consistently and correctly:

Indoors. Mask use is recommended for people who are not fully vaccinated including children.

Answer: The Department considers use of the phrases “Administrators should encourage” and “Mask use is recommended” to be non-mandatory language that must be actually complied with under 10.E. This means the phrases will be read as “Administrators shall require” and “Mask use is required.”

Accordingly, for an employer to comply with the above language and take advantage of 10.E, IHE employees who are not fully vaccinated must wear face coverings.

The Department’s interpretation of 10.E and language in CDC publications will otherwise follow normal rules of regulatory/statutory construction. For instance, if the CDC publication language offers options for an employer to address a hazard, issue, etc., that is also addressed by the VOSH Standard (e.g., the employer “should” do “this”, or “that”, or “the other”), then the employer is required to implement at least one of the options in order for §10.E to apply.

5. What requirements apply to public and private institutions of higher education?

The standard applies to public and private institutions of higher education in the same manner that it applies to other employers under the jurisdiction of the VOSH program.

6. What requirements apply to public school divisions and private schools?

The standard applies to public school divisions and private schools in the same manner that it applies to other employers under the jurisdiction of the VOSH program.

7. Does the standard supersede a Governor’s Executive Order or Order of Public Health Emergency?

Governor’s Executive Order 79 and Order of Public Health Emergency Ten ended the Governor’s commonsense public health restrictions due to the novel coronavirus (COVID-19), so the Virginia standard applies to all Virginia employers and employees covered by VOSH jurisdiction.

Please also note that existing VOSH standards and regulations that were in place and applicable to covered employers and employees prior to the COVID-19 pandemic may be used to address SARS-CoV-2 and COVID-19 workplace hazards in an enforcement setting. VOSH is required by the OSH Act of 1970 and OSHA regulations to be “at least as effective as” federal OSHA. VOSH generally follows OSHA interpretations of federal identical standards and regulations.

8. Does the standard require employers to conduct “contact tracing” if one of their employees is diagnosed with COVID-19?

No. Section 10.F specifically provides that “Nothing in the standard shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.”

9. Does the standard apply to volunteer fire fighters or volunteer rescue squad members?

No, provided that they “serve without pay.” Virginia Occupational Safety and Health (VOSH) laws, standards, and regulations do not apply to volunteer fire fighters or members of volunteer rescue squads who “serve without pay.” Section 16 VAC 25-60-10[1] defines a “public employee” as:

“Public employee” means any employee of a public employer. Volunteer members of volunteer fire departments, pursuant to §27-42[2] of the Code of Virginia, members of volunteer rescue squads who serve without pay, and other volunteers pursuant to the Virginia State Government Volunteers Act [§2.2-3600[3] et. seq.] are not public employees….

In determining whether volunteer fire fighters or volunteer rescue squad members are covered by VOSH, the question of whether they “serve without pay” is looked at on a case by case basis. Volunteers are not paid a salary but do receive some benefits from their organization. If the benefits the volunteer receives are authorized by the Code of Virginia they are not considered as pay and those benefits would not bring the volunteer under VOSH coverage. Examples of benefits that are authorized by the Code of Virginia include, but are not limited to, meals, lodging, liability insurance coverage, etc. Receipt of such statutorily defined benefits would not be considered pay.

However, for instances where “benefits” go beyond or are different from those listed in the Code of Virginia, VOSH will make an independent determination on whether the additional benefits amount to “pay.” For example, if each volunteer received trip money per call of $50 and the most it could cost to get from one end of the service area to the other is $20 then the additional amount might be considered pay.

Please call Rob Field, DOLI Hearing and Legal Services Officer, at (804) 786-4777 if you have additional questions.

10. Regarding 16VAC25-220-10.E, which CDC guidelines can employers follow that would be considered by VOSH to be in compliance with a provision of this standard?

It is the employer’s responsibility to identify CDC guidelines (both mandatory and non-mandatory) that address a comparable provision in the Virginia standard. VOSH will not be going through a separate process of identifying CDC guidelines it considers are comparable to individual provisions of the standard.

NOTE: For further information, see answer above to question: “If an employer complies with CDC guidance for its industry, do they have to comply with the standard?”

11. If we meet and exceed the CDC guidelines and we show good faith in meeting Virginia’s standard, do we still need to perform a risk assessment per hospital?

16VAC25-220-10.E provides in part:

“To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard the employer’s actions shall be considered in compliance with this chapter. An employer’s actual compliance with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this chapter shall be considered evidence of good faith in any enforcement proceeding related to this chapter….”

In order for an employer to take advantage of the language in 16VAC25-220-10.E to be “considered in compliance with” a provision of the standard (for instance, in the context of a VOSH inspection), the employer will have to inform VOSH what CDC guidelines they are complying with that they contend addresses the same issue as a provision in the standard.

First, when you use the term “risk assessment” we are assuming you are referring to the requirement in 16VAC25-220-40.B.1 that:

  1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

Second, with regard to your specific question about performing a risk assessment for each hospital, you would need to provide information on which CDC guidelines you are referring to and indicate whether those guidelines provided for any sort of risk assessment similar to that provided by 16VAC25-40.B.1.

NOTE: For further information, see answer above to question: “If an employer complies with CDC guidance for its industry, do they have to comply with the standard?”

If the CDC publication the employer is relying on does not address requirements that are contained in the VOSH Standard (e.g., employee training, air handling systems, notifications to the Department and VDH of COVID-19 outbreaks, etc.), then the employer must comply with the VOSH Standard.

If the CDC publication the employer is relying on has been archived and is no longer being updated, it is not considered current under 10.E and it cannot be relied upon under by the employer in lieu of complying with the VOSH Standard (e.g., https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html, last updated May 7, 2021). Also, in cases where a CDC publication has become outdated without specifically being archived (e.g., when the CDC updated guidance on July 27, 2021 for fully vaccinated people to continue to wear face coverings indoors in areas of substantial or high community transmission), the most recent guidance by the CDC in other updated publications will be what governs.

Third, in the context of your statement that you are dealing with multiple hospitals, if you have consistent types of job tasks across those hospitals, we note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.” An employer may prepare a risk assessment that provides corporate wide classification of hazards and job tasks for its Virginia locations that could meet the requirements of the standard.

NOTE: Hospitals are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

However, please note that if an individual hospital had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific hospital.

The individual hospitals would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

12. Does the standard apply to temporary employees and temporary staffing agencies?

Yes. 16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this chapter also includes, but is not limited to, temporary employees and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.”

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the standard are the same as for any other VOSH or OSHA standard. See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

14. What risk assessment classifications apply at automotive sales and repair businesses?

To determine appropriate protections for employees from the SARS-CoV-2 virus under the standard, employers must first:

….assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes. 16VAC25-220-40.B.1.

NOTE: Automotive sales and repair businesses are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

16VAC25-220-60 was amended by the Safety and Health Codes Board on August 26, 2021 with an effective date of September 8, 2021 to apply to “higher risk workplaces” which include, but are not limited to, manufacturing, meat and poultry processing, high-volume retail and grocery, transit, seafood processing, correctional facilities, jails, detention centers, and juvenile detention centers.

You discussed in your letter that:

  • The natural layout of our locations lends our work spaces to be more than six feet of social (physical) distancing.
  • Our service bays are spaced farther apart than six feet, and because of this, our employees performing their required duties are not in contact with other employees or customers.
  • These businesses are offering numerous options so their customers have minimal to no contact with the employees of the store.
  • Concierge pickup and delivery services of the vehicle, after hour exterior key drop services, complimentary
  • Uber rides home or to work, phone payments and more insure a safe experience for our member’s customers with little or no contact.
  • In addition, our member store employees wear face coverings and gloves, and exterior surfaces are continuously cleaned and sanitized.
  • The customer’s vehicle is sanitized before being returned.

If your member’s employees are able to maintain physical distancing of 6 feet from other persons (employees, customers, etc.) at all times, then it does not appear that they fall into the higher risk workplace category. However, your members must comply with the mandatory requirements for all employers contained in 16VAC25-220-40.

VOSH encourages you to suggest your members consider working with our Consultation Program for small employers (up to 250 employees at one site or 500 nationwide) which is available to provide free, confidential consultation and training services. The program also has 3 consultants that are available as demand allows to work with large employers.

https://www.doli.virginia.gov/vosh-programs/consultation/

15. Are private contractors and temporary employees who are working at a federal workplace (e.g., military installation, federal building, etc.) covered by the standard?

No. Here is a link to OSHA’s website that explains VOSH jurisdiction:

https://www.osha.gov/stateplans/va

VOSH does not generally cover private contractors working at federal installations (with the exception of those engaged in asbestos removal):

“The Virginia State Plan applies to private sector workplaces in the state with the exception of: ….

  1. Employment at worksites located within federal military facilities as well as on other federal enclaves where civil jurisdiction has been ceded by the state to the federal government.”

With regard to temporary employees working for the federal government, any exposures to COVID-19 they may experience at the federal installation would also fall under federal OSHA jurisdiction.

16. We have an employee who's doctor is requesting accommodations related to COVID-19 exposure that are expensive and not sustainable and we are looking for guidance on how to proceed.

The situation you raise falls under the Americans With Disabilities Act (ADA) which is enforced by the Equal Employment Opportunity Commission (EEOC). We are not experts on the ADA, but here is a link to their webpage with guidance on the ADA and COVID-19 issues. You need to research the core issue of whether the “high risk” category that the employee falls into is a “medical condition” that meets the definition of a “disability” under the ADA or not. Section D contains FAQs on “reasonable accommodations” that are provided to employees with a disability. You will also see the term “undue hardship” referenced, which you should research to see if it applies to your company’s situation.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

17. Does the standard apply to mines or are mines under the Mine Safety and Health Administration (MSHA), which pre-empts OSHA regulations?

Generally speaking, VOSH does not have jurisdiction over mines and quarries, which are regulated by the Virginia Department of Mines, Minerals and Energy (DMME). At the federal level, the Mine Safety and Health Administration (MSHA) and OSHA entered into an Interagency Agreement in 1980, which VOSH follows when determining jurisdiction issues involving mines and quarries – there are lines of demarcation for when MSHA/DMME jurisdiction ends and OSHA/VOSH jurisdiction begins. The Agreement can be found at this link:

https://www.osha.gov/enforcement/directives/cpl-02-00-042-0

18. Does the standard require employees to be vaccinated?

No. The standard is silent on the issue of vaccines in the workplace.

19. What does it mean to be fully vaccinated?

The standard defines “fully vaccinated” in 16VAC25-220-30:

“Fully vaccinated” means a person is considered fully vaccinated for COVID-19 more than or equal to two weeks after they have received the second dose in a two-dose series, or more than or equal to two weeks after they have received a single-dose vaccine, provided such vaccine has been FDA-approved, or authorized by an FDA EUA, or authorized for emergency use by the World Health Organization (WHO).

NOTE: Once manufacturers establish guidelines for their vaccines remaining current (i.e., what is the estimated duration of immunity offered by a particular vaccine), the definition of “fully vaccinated” may change and could impact compliance issues with the standard.

20. Can my employer legally ask if I received the COVID-19 vaccine and am fully vaccinated?

The Department is not aware of any Virginia law, standard or regulation that prohibits employers from asking employees if they have received the COVID-19 vaccine and are fully vaccinated, and if so, requiring employees to show proof of full vaccination.

HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) applies to “covered entities” and “business associates,” and in most cases does not apply to employers. Accordingly, the patient privacy protections contained in HIPAA do not apply to employers who ask employees if they have received the COVID-19 vaccine and are fully vaccinated or require employees to show proof of full vaccination. For further information on HIPAA see: https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html

EEOC

The Equal Employment Opportunity Commission (EEOC) indicates that employers may require employees to show proof of full vaccination, but notes certain issues associated with such a mandate:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

K.3. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (December 16, 2020)

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

21. Can my employer require me to get fully vaccinated?

The CDC notes the following with regard to employer vaccine mandates:

Whether an employer may require or mandate COVID-19 vaccination is a matter of state or other applicable law. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own healthcare provider, the employer cannot mandate that the employee provide any medical information as part of the proof.

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html#:~:text=Employer%20Vaccine%20Mandates%20and%20Proof%20of%20Vaccination&text=If%20an%20employer%20requires%20employees,as%20part%20of%20the%20proof.

The Department is not aware of any Virginia law, standard or regulation that prohibits employers from implementing a COVID-19 vaccine mandate. Private employers should seek legal counsel for additional details.

EEOC

The Equal Employment Opportunity Commission (EEOC) indicates that employers may require employees to be vaccinated, but notes certain issues associated with such a mandate:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (December 16, 2020)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the FMLA or under the employer’s policies. See also Section J, EEO rights relating to pregnancy.

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but as explained further in Question K.7., there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA COVID-specific resources at: www.osha.gov/SLTC/covid-19/.

Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.

§20 Effective Dates.

1. What are the effective dates for the standard?

The revised standard took effect on September 8, 2021.

The requirements for 16VAC25-220-70 shall take effect on October 8, 2021.

The training requirements in 16VAC25-220-80 shall take effect on November 8, 2021.

§30 Definitions.

1. What terms are defined in the standard?

Definitions are provided for the following terms in §30:

Administrative Control, Aerosol-generating procedure, Airborne infection isolation room (AIIR), Ambulatory care, ASTM, Asymptomatic, Building/facility owner, Cleaning, Community transmission, Confirmed COVID-19, COVID-19, COVID-19 positive and confirmed COVID-19, Disinfecting, Duration and frequency of employee exposure, Economic feasibility, Elastomeric respirator, Elimination, Employee, Engineering control, Face covering, Face mask, Face shield, Feasible, Filtering facepiece, Fully vaccinated, Hand sanitizer, HIPAA, Health care services, Health care support services, Occupational exposure, Otherwise at-risk, Personal protective equipment, Physical distancing, Powered air-purifying respirator” or “PAPR, Respirator, Respirator user, SARS-CoV-2, Severely immunocompromised, Signs of COVID-19, Surgical mask, Suspected COVID-19, Symptomatic, Technical feasibility, USBC, Vaccine, VDH, VOSH, and Work practice control.

§40 Mandatory requirements for all employers.

1. Can an employer require an employee who was diagnosed with COVID-19 or was suspected to be infected with the SARS-CoV-2 virus to be tested for COVID-19 before returning to work under §40.B?

Yes. 16VAC25-220-40.C.2 and C.3 provide:

  1. If the employer knows an employee is suspected COVID-19, regardless of vaccination status then the employer must immediately remove that employee from the work site and either:
  2. Keep the employee removed until they meet the return to work criteria in subdivision C 3 of this section; or
  3. Keep the employee removed and provide a COVID-19 polymerase chain reaction (PCR) test at no cost to the employee.

(1) If the test results are negative, the employee may return to work immediately.

(2) If the test results are positive, the employer must comply with subdivision C 1 of this section.

(3) If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace consistent with subdivision C 1 of this section. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons.

  1. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed health care provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Health care Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID-19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

In addition, the Equal Employment Opportunity Commission (EEOC) has decided that employers can require employees to be tested for COVID-19:

Answer to Question A.6, “….employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

2. Do employees have to pay for COVID-19 tests if required by their employer?

No. Section 40.C.4 provides:
For purposes of this section, COVID-19 testing is considered a “medical examination” under §40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations. If an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of this subdivision C 3.

3. Are building owners required to notify employer tenants of a SARS-CoV-2 positive test of an employee in the building?

Yes. Section 40.B.7.c provides that:
…. The building or facility owner will require all employer tenants to notify the owner of the occurrence of a COVID-19-positive test for any employees or residents in the building. This notification will allow the owner to take the necessary steps to clean the common areas of the building. In addition, the building or facility owner will notify all employer tenants in the building that one or more cases have been discovered and the floor or work area where the case was located. The identity of the individual will be kept confidential in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable federal and Virginia laws and regulations;

4. Besides the standard, which VOSH standards and regulations apply to employer protection of workers during the COVID-19 pandemic?

  • personal protective equipment
    • respiratory protective equipment
    • sanitation
    • access to employee exposure and medical records
    • occupational exposure to hazardous chemicals in laboratories
    • hazard communication
    • recordkeeping

5. Does the standard contain a requirement for a mask mandate for the public (the standard uses the term “face covering”)?

No. While the standard does not mandate face coverings for the general public, 16VAC25-220-50.C.8 provides as follows for workplaces in health care services or health care support services:

  1. Employers shall provide face coverings to suspected COVID-19 non-employees to contain respiratory secretions until the non-employees are able to leave the site (i.e., for medical evaluation and care or to return home).

The above requirement is also contained in 16VAC25-220-60.C.2 for higher risk workplaces.

6. Does the standard require employers in Virginia to notify employees about a positive case of COVID-19 in the workplace?

Yes. 16VAC25-220-40.B.7 provides:

  1. To the extent permitted by law, including HIPAA, employers shall establish a system to receive reports of positive COVID-19 tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being suspected or confirmed COVID-19) present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test). Employers shall notify:
  2. The employer’s own employees who may have been exposed, within 24 hours of discovery of the employees’ possible exposure, while keeping confidential the identity of the confirmed COVID-19 person in accordance with the requirements of the Americans with Disabilities Act (ADA) (42 USC § 1201 et seq.) and other applicable federal and Virginia laws and regulations;
  3. In the same manner as subdivision 7 a of this subsection, other employers whose employees were present at the work site during the same time period;

7. If an employee tests positive, but was not at a facility or jobsite where other employees could have been exposed, does that positive test have to be reported under 16VAC25-220-40.B.7.d or 16VAC25-220-40.B.7.e?

No. Please note that the reporting provisions in 16VAC25-220-40.B.7.d or -40.B.7.e only apply to situations where an employee was present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

9. We have members that cannot provide alcohol-based hand sanitizer in their facilities because it either creates a fire hazard or product contamination hazard. These companies sometimes use alcohol free hand sanitizer (0.13% Benzalkonium Chloride) instead. Will employers who cannot provide alcohol-based hand sanitizers in their facilities due to fire hazard or product contamination concerns be in violation of 16VAC25-220-40.E.4 or 16VAC25-220-40.L.9?

No. First, it is important to note that the standard and General Industry standard §1910.141, Sanitation already includes a requirement for of employee access to hand washing facilities:

  • “Employees shall have easy, frequent access and permission to use soap and water,” 16VAC25-220-40.L.9;
  • “Each lavatory shall be provided hot and cold running water, or tepid running water,” 1910.141(d)(2)(ii); and
  • “Hand soap or similar cleansing agents shall be provided,” 1910.141(d)(2)(iii).

Second, both final standard sections referenced above acknowledge that there may be considerations of “feasibility” regarding the supply and usage of alcohol-based hand sanitizer (“hand sanitizer where feasible”).

With regard to the fire hazard concern, 16VAC25-220-40.E.4 specifically acknowledges that “Hand sanitizers required for use to protect against SARS-CoV-2 are flammable and use and storage in hot environments can result in a hazard.”

VOSH encourages employers to engage in management of change best practices to prevent the unintentional introduction of a new occupational hazard when a new chemical, material, product, etc., is introduced into an existing work environment. VOSH considers the potential for a fire hazard due to the presence of alcohol-based hand sanitizers in a hot manufacturing environment to present an issue of infeasibility within the definition of that term in the standard or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

With regard to the concern that the introduction of an alcohol-based hand sanitizer into a facility could pose a threat of product contamination, VOSH considers product contamination concerns to present an issue of infeasibility within the definition of that term in the standard or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

10. Does a company with multiple locations in Virginia that operate in an identical or very similar fashion have to perform a risk assessment specific to each location?

When you use the term “risk assessment” we assume you are referring to the requirement in 16VAC25-220-40.B.1 that:

  1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

In the context of your statement that you are dealing with multiple worksite locations, if you have consistent types of job tasks across those locations, please note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.” An employer may prepare a risk assessment that provides corporate wide classification of hazards and job tasks for its Virginia locations that could meet the requirements of the standard.

NOTE: General industry employers are already required to comply with hazard assessment and personal protective equipment selection requirements in 1910.132(d) and can choose to combine their hazard assessments under 16VAC25-220-40.B.1 with their assessments required by 1910.132(d).

However, please note that if an individual location had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific worksite location.

The individual worksite locations would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

11. Under, §16VAC25-220-40.B.7.e there is a requirement for employers to notify The Virginia Department of Labor and Industry within 24 hours of the discovery of two (2) or more employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period. Does the time period include days prior to when the standard went into effect, or is the time period forward looking from the effective date of the standard?

16VAC25-220-40.B.7.e is not retroactive in nature, so the referenced time period first starts on the effective date of the standard, which was September 8, 2021.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.7.d and -40.B.7.e that satisfies COVID-19 reporting requirements for both agencies. Here is a link:

https://www.doli.virginia.gov/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

12. We are not aware of any “industry standards” for PPE in regular trucking operations. Except for certain hazardous material operations, we are not aware of any PPE requirements for the operation of trucks or loading and nloading activities

All federal OSHA identical standards and regulations enforced by VOSH in General Industry (29 CFR Part 1910) apply to general industry employers like the trucking industry, except where otherwise exempted by §4(b)(1) of the OSH Act of 1970. Two such standards are the Personal Protective Equipment (PPE) (1910.132[1]) and Respiratory Protection (1910.134[2]) standards. COVID-19 is a respiratory disease that spreads easily through airborne transmission between persons in contact with each other inside six feet, so the PPE and Respirator Standards are considered applicable.

13. The standard calls for cleaning of common spaces, including bathrooms at the end of each shift 16VAC25-220-40.L.5. Does this requirement include port-a-johns or privies at construction or other work sites?

Yes. 16VAC25-220-40.L.5 applies to port-a-johns or privies.

NOTE: Normally, port-a-johns or privies are rented from a service company and the agreement specifies the number of cleanings and servicing. They are normally serviced and cleaned two or three times per week, depending on the use, time of year or need due to site conditions. The servicing and cleaning is performed by an employee of the rental/service company providing the “johnny”.

14. How do you request a religious waiver?

Requests for religious waivers can be sent to:

Division of Legal Support
Virginia Department of Labor and Industry
600 E. Main Street, Suite 207
Richmond, VA 23219

OR

webmaster@doli.virginia.gov

The request should:

  • Identify which provision of the standard you are requesting a waiver from.
  • Explain the religious basis for the waiver.
  • Identify, if any, what reasonable accommodation you are requesting that would provide an equivalent form of protection.

Background

The federal Occupational Safety and Health Act (OSHA) regulates conditions in workplaces which affect employee safety and health. The federal government assigned OSHA enforcement responsibilities in Virginia to the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) Program. To maintain federal OSHA approval, Virginia is required to maintain OSHA program standards (regulations) that are “at least as effective as” federal regulations.

While the standard is unique to Virginia, VOSH’s Respiratory Protection Standard, 1910.134, is identical to that of OSHA.

Federal OSHA Interpretations on Religious Waivers

The following federal OSHA interpretations have been issued with regard to religious waivers for respirator use under 1910.134:

https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=24408&p_table=INTERPRETATIONS

https://www.osha.gov/laws-regs/standardinterpretations/1998-12-02

https://www.osha.gov/laws-regs/standardinterpretations/1984-01-18

Title VII Considerations (Title VII of the Civil Rights Act prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy)

(From EEOC Technical Assistance Questions and Answers – Updated on June 17, 2020)

“G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee…needs a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.”

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

15. Who is responsible to request a religious waiver from the face covering requirement, the employee wanting the waiver or the employer?

Either the employee wanting the waiver or the employer may submit the request for the waiver. However, if the employer chooses to submit the request, it will have to consult with the employee wanting the waiver to provide certain information needed for the request.

We are not aware of any prohibition against the employer requiring the employee to submit the request.

Please also note that there are both occupational safety and health related issues in regard to religious waivers and Title VII legal issues as well.

16. Can religious accommodations regarding facial hair be made for the wearing of face masks (referred to in the standard as “face coverings”)?

Please note that face coverings are not considered respirators under 1910.134 or personal protective equipment under 1910.132.

16VAC25-220-20, Definitions, provides a definition of face covering:

“Face covering” means an item made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers are considered acceptable face coverings. Nonmedical disposable masks for single use that otherwise meet the definition of “face covering” in this chapter, with the exception that they are not washable, are permissible to use as face coverings. Face coverings shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl. A face covering is not a surgical mask or respirator. A face covering is not subject to testing and approval by a state or federal government agency, so it is not considered a form of personal protective equipment or respiratory protection equipment under VOSH laws, rules, regulations, and standards. Notwithstanding any other provisions in this definition, face coverings approved as having met ASTM standards for face coverings effective against the SARS-CoV-2 virus shall be considered to be in compliance with this chapter.

There is no prohibition in the standard against wearing a face covering over facial hair.

17. 16VAC25-220-40.E.4 requires employers to make hand-washing and hand sanitizer where feasible available to employees. Employers of truck drivers will have difficulty complying with this requirement. Such employers cannot ensure that their drivers will have access to hand-washing facilities at all locations where they conduct loading and unloading duties. In fact, this same section requires that common areas, breakrooms, or lunchrooms be closed or controlled at a great number of locations where truck drives will be loading and unloading freight. In fact, many trucking employers have and are experiencing situations where shippers and receivers have closed access to these facilities to their drivers. Please provide guidance on how an employer of a truck driver is to comply with this requirement in these situations.

With regard to “sanitation” under 16VAC25-220-40.E.4, -40.L.9, and 1910.141,[1] truck drivers are considered to be part of a “mobile crew”. 16VAC25-220-40.L.10 provides:

  1. Mobile crews shall be provided with hand sanitizer where feasible for the duration of work at a work site or client or customer location and shall have transportation immediately available to nearby toilet facilities and handwashing facilities that meet the requirements of VOSH laws, standards, and regulations dealing with sanitation. Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard.

Also, §1910.141(c)(1)(ii) provides:

The requirements of paragraph (c)(1)(i) (which contains the requirement for providing toilet facilities) of this section do not apply to mobile crews or to normally unattended work locations so long as employees working at these locations have transportation immediately available to nearby toilet facilities which meet the other requirements of this subparagraph.

In addition, §1910.141(d)(2)(i) provides:

Lavatories (lavatories are required to be provided with hot and cold running water, or tepid running water) shall be made available in all places of employment. The requirements of this subdivision do not apply to mobile crews or to normally unattended work locations if employees working at these locations have transportation readily available to nearby washing facilities which meet the other requirements of this paragraph.

With regard to the requirement to provide hand sanitizer, VOSH assumes that the employer can comply with this requirement “where feasible” as the standard provides in 16VAC25-220-40.E.4 and -40.L.10.

However, please note the potential hazard of locating hand sanitizer in vehicle cabs where a hot environment might develop (this is regarded as a “feasibility” issue that needs to be considered by the employer). 16VAC25-220-40.L.10 provides:

….Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard.

With regard to the standard requirements for common areas, breakrooms, or lunchrooms where drivers conduct loading and unloading duties (“host employers”), if they are closed to your employees, the standard requirements are not implicated.

If the areas are open to your employees and the host employer has implemented precautions consistent with the requirements in 16VAC25-220-40.E dealing with “Access to common areas, breakrooms, or lunchrooms shall be closed or controlled,” then the driver’s employer can instruct employees that they can use the areas, provided the employees follow the host employer’s rules for use.

If the areas are open to your employees, but the host employer has not complied with the requirements in 16VAC25-220-40.E, the driver’s employer can instruct employees to not use those areas.

18. With regard to office environments, are struggling with our interpretation on the section that addresses floor-to-ceiling barriers. Specifically, we are wondering if they are one way of accomplishing physical distancing, or if they are required even where physical distancing of 6 feet or more is feasible?

Floor to ceiling barriers are one way of accomplishing physical distancing, but not required where it is already feasible to accomplish in other ways.

The definition of “Physical distancing” provides in part:

Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall (e.g., an office setting) constitutes one form of physical distancing from an employee or other person stationed on the other side of the wall, provided that six feet of travel distance is maintained from others around the edges or sides of the wall as well.

19. Are “lower risk” employees required to wear face coverings while at work?

The Virginia standard was amended effective September 8, 2021 and no longer contains a designation of “lower risk.”

16VAC25-220-40.G contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

20. Under Section 16VAC25-220-40.B.7.e, should an employer notify the Virginia Department of Labor and Industry only if one of its own employees is diagnosed? Or does this notification requirement include diagnosed contractors and/or other workers at the same worksite? If so, wouldn’t that lead to double (or triple) reporting of the same diagnoses?

Employers only need notify DOLI about two (2) or more positive COVID-19 tests of its own employees under 16VAC25-220-40.B.7.e.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies. The portal went live on Monday, September 28, 2020. Here is a link:

https://www.doli.virginia.gov/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

21. If an employer mandates employees be tested prior to returning to work and the employee refuses, can the employee be disciplined for not following the company’s policy?

Employees potentially can be disciplined for refusing to be tested if the employer chooses to do so under its disciplinary policy.

The standard addresses testing in 16VAC25-220-40.C.2 and C.3 provide:

  1. If the employer knows an employee is suspected COVID-19, regardless of vaccination status then the employer must immediately remove that employee from the work site and either:
    1. Keep the employee removed until they meet the return to work criteria in subdivision C 3 of this section; or
    2. Keep the employee removed and provide a COVID-19 polymerase chain reaction (PCR) test at no cost to the employee.

(1) If the test results are negative, the employee may return to work immediately.

(2) If the test results are positive, the employer must comply with subdivision C 1 of this section.

(3) If the employee refuses to take the test, the employer must continue to keep the employee removed from the workplace consistent with subdivision C 1 of this section. Absent undue hardship, employers must make reasonable accommodations for employees who cannot take the test for religious or disability-related medical reasons.

3. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed health care provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Health care Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID-19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

22. If an employer's health insurance covers the entire cost of COVID-19 testing, does this meet the requirement of section 40.C.4?

Yes, if an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of 16VAC25-220-40.C.4, which provides that:

For purposes of this section, COVID-19 testing is considered a “medical examination” under § 40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations. If an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of this subdivision C 4.

23. The owners of a salon have a question about alerting the employees at their workplace when an employee tests positive for COVID-19. They are under the impression that only employees in “close contact” (as defined by the CDC) with the positive employee must be alerted. The salon has a strict physical distancing requirement of six feet or more for employees, so they alerted no one at the workplace of the positive case. Is this correct?

No. Employees were required to be notified.

The term “close contact” is not used in the standard. The term “close contact” is used by the CDC for determining when contact tracing should be conducted and is defined as “any individual within 6 feet of an infected person for at least 15 minutes.” [1] 16VAC25-220-10.F specifically provides that:

  1. Nothing in the chapter shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.

16VAC25-220.40.B.7.a requires employers to notify their “own employees who may have been exposed, within 24 hours of discovery of the employees’ possible exposure….”

Just because an employer has a strict policy of physical distancing as the company alleges does not mean that all employees, customers or persons complied at all times. The intent of the notification requirement is to provide employees information of a “possible” exposure so that employees can make decisions for themselves on the appropriate course of action to take.

In a situation such as a typical beauty salon where the “footprint” of the floor space would not be considered large, and all employees work in the same work space on the same floor, the employer must notify all employees that were ”present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test).”

24. What is the difference between isolation and quarantine?

“Isolation” is the separation of people with COVID-19 from others. People in isolation need to stay home and separate themselves from others in the home as much as possible. Requirements for returning to work from isolation is covered by the standard in 16VAC25-220-40.C.

“Quarantine” is separation of people who were in “close contact” with a person with COVID-19 from others. People in quarantine should stay home as much as possible, limit their contact with other people, and monitor their health closely in case they become ill.

“Close contact” means you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.[1]

Requirements for returning to work from “quarantine” is NOT covered by the standard. Instead, Virginia Department of Health (VDH) guidelines apply.

25. Which employees are not required to stay home (quarantine) after having close contact with someone with COVID19?

  • Employees who have had COVID-19 in the past 3 months, as long as they do not develop new symptoms.*
  • Employees who have been fully vaccinated for COVID-19 within the past 3 months, as long as they have no symptoms.*
    • Fully vaccinated” means a person is considered fully vaccinated for COVID-19 more than or equal to two weeks after they have received the second dose in a two-dose series, or more than or equal to two weeks after they have received a single-dose vaccine, provided such vaccine has been FDA-approved, or authorized by an FDA EUA, or authorized for emergency use by the World Health Organization (WHO). 16VAC25-220-30.
  • Employees who have had close contact with a person who was a close contact to someone with COVID-19 (“contact of a contact”). If the employee’s contact tests positive for COVID-19, then the employee should stay home (quarantine).

*It is very important that people who are not required to stay home (quarantine) monitor themselves for symptoms for 14 days after their last exposure and continue following all recommendations (e.g., wear a mask, stay at least 6 feet away from others, avoid crowds, and wash hands often).

Healthcare personnel who are fully vaccinated for COVID-19 within the past 3 months and who have a higher risk exposure at work, or travel or community-associated exposure, should stay home from work until they meet criteria to return (end quarantine). Exceptions can be considered during staffing shortages. They are not required to stay home (quarantine) outside of work.

These recommendations are based on what we know about COVID-19 vaccines and protection provided by previous infection at this time. CDC and other scientists continue to research the ability of COVID-19 vaccines to prevent transmission of the virus, but this process takes time. As we learn more, changes could be made to these recommendations.

26. When can an employee filling an essential critical infrastructure role (except for education sector workers) return to work after close contact with a person with COVID19, if the employee does not meet any of the exceptions outlined in FAQ 25?

Close contacts of a known COVID-19 case who are not experiencing symptoms and who do not meet any of the exceptions outlined in FAQ 25 should be quarantined at home until 14 days have passed since last contact with the COVID-19 case or, if contact is ongoing (such as living together in a household), 14 days after the COVID-19 patient has been released from isolation, which may result in exclusion for up to 24 days. Individuals who are not able to stay home for 14 days after their last exposure and who have no symptoms may leave home earlier:

  • Counting the date of last exposure as Day 0, after 10 days without testing; or
  • After Day 7 with a negative PCR or antigen test performed on or after Day 5

If the individual leaves home early, they should still watch for symptoms for 14 days after their last exposure and follow all recommendations (e.g., wear a mask, watch their distance, avoid crowds, wash their hands often).

NOTE: If the employee is a household contact of a person with COVID-19 and the employee is able to have complete separation from the ill person (meaning no contact, no time together in the same room, no sharing of any spaces, such as the same bathroom or bedroom), the employee may follow the timeline for non-household contact. See the VDH When to End Home Isolation and Quarantine Infographic for more information.

However, it may be necessary for personnel filling essential critical infrastructure roles (except for education sector workers) who are asymptomatic contacts to remain in the workplace in order to provide essential services, if the business cannot operate without them. These situations should be reviewed with the local health department on a case-by-case basis, with home quarantine being the preferred method of addressing close contacts.

If the employee develops symptoms of COVID-19 or tests positive for SARS-CoV-2, exclusion guidance for employees suspected or confirmed to have COVID-19 should be followed. If the employee tests negative during the quarantine period, it is recommended that the employee quarantine (stay home) for 14 days, but if they are not able to stay home for 14 days, they may end quarantine earlier as described above.

If a business is unable to operate without the critical infrastructure employee, the employee (except for education sector workers, who should follow the public health quarantine guidance for non-essential workers listed in FAQ 27 and outlined here) may return to work (not undergo quarantine) as long as:

  • Employers pre-screen the employee (temperature checks)
  • Employers conduct regular monitoring of employee
  • Employee wears a face mask at all times for 14 days after last close contact
  • Employee maintains 6 feet of physical distance from all persons outside their household
  • Employer ensures work space is routinely cleaned and disinfected

However, anyone who has been exposed through close contact with someone with COVID-19 does NOT need to stay home when the exposed person:

  • recovered from COVID-19 in the past 3 months and has not developed new symptoms

OR

  • has been fully vaccinated for COVID-19 in the past 3 months as long as they have no symptoms

27. When can an employee NOT filling an essential critical infrastructure role return to work after close contact with a person with COVID19, if the employee does not meet any of the exceptions outlined in FAQ 25?

Close contacts of a known COVID-19 case who are not experiencing symptoms and who do not meet any of the exceptions outlined in FAQ 25 should be quarantined at home until 14 days have passed since last contact with the COVID-19 case or, if contact is ongoing (such as living together in a household), 14 days after the COVID-19 patient has been released from isolation, which may result in exclusion for up to 24 days. Individuals who are not able to stay home for 14 days after their last exposure and who have no symptoms may leave home earlier:

  • Counting the date of last exposure as Day 0, after 10 days without testing; or
  • After Day 7 with a negative PCR or antigen test performed on or after Day 5

If the individual leaves home early, they should still watch for symptoms for 14 days after their last exposure and follow all recommendations (e.g., wear a mask, watch their distance, avoid crowds, wash their hands often).

NOTE: If the employee is a household contact of a person with COVID-19 and the employee is able to have complete separation from the ill person (meaning no contact, no time together in the same room, no sharing of any spaces, such as the same bathroom or bedroom), the employee may follow the timeline for non-household contact. See the VDH When to End Home Isolation and Quarantine Infographic for more information.

If the employee develops symptoms of COVID-19 or tests positive for SARS-CoV-2, exclusion guidance for employees suspected or confirmed to have COVID-19 should be followed. If the employee tests negative during the quarantine period, it is recommended that the employee quarantine (stay home) for 14 days, but if they are not able to stay home for 14 days, they may end quarantine earlier as described above.

However, anyone who has been exposed through close contact with someone with COVID-19 is not required to stay home when the exposed person:

  • recovered from COVID-19 in the past 3 months and has not developed new symptoms

OR

  • has been fully vaccinated for COVID-19 in the past 3 months as long as they have no symptoms

Further details are available here.

28. Can employers require employees who were close contacts of a COVID-19 case to return to work sooner than 14 days after the close contact if the employee does not meet any of the exceptions outlined in FAQ 25?

Employers must follow appropriate quarantine requirements discussed in FAQs 26 and 27 for employees who were close contacts of a COVID-19 case and who do not meet any of the exceptions outlined in FAQ 25 before allowing such employees to return to work.

29. Can you provide some clarification on return to work and diagnosis requirements under the standard? We want to isolate and test anyone with signs or symptoms of COVID-19 (defined under the standard as “Suspected to be infected with SARS-CoV-2 virus”), but if the test comes back negative, we want to rule out COVID-19 as the diagnosis and treat the employee like they have a more common and less dangerous illness. The regulation is not clear on this and reads like we can only return them to work after two tests as if the initial presumption was correct.

16VAC25-220-20 defines the term as:

“Suspected COVID-19” as “a person who has been told by a licensed health care provider that they are suspected to have COVID-19; or is experiencing recent loss of taste and/or smell with no other explanation; or is experiencing both fever ( greater than or equal to 100.4° F) and new unexplained cough associated with shortness of breath; or has symptoms consistent with the clinical criteria in the CDC national case definition and no other explanation for symptoms exist.”

If an employee HAS HAD “close contact” with a COVID-19 case and developed signs or symptoms, but tested negative for SARS-CoV-2, the employee should remain under quarantine for 14 days after last close contact with the COVID-19 case. Although not defined in the standard, the Virginia Department of Health (VDH) and the CDC define “close contact” as meaning “you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.”[1]

However, if the employee DID NOT have close contact with a COVID-19 case or an area with substantial COVID-19 transmission, but does have signs or symptoms and tested negative for

SARS-CoV-2, the negative test can be considered as supporting an “alternative diagnosis”, and the person would not be considered suspected to be infected with SARS-CoV-2 virus. The employee must remain out of work until signs and symptoms have resolved and the employee has been fever-free for at least 24 hours without the use of fever-reducing medicine (unless symptoms are due to a known non-infectious cause, such as allergies).

NOTE: It is important to remember that a negative test for SARS-CoV-2 only means that the person wasn’t infected at the time the test was taken. If the person is ill one week, tests negative for SARS-CoV-2, and recovers from their illness, only to become ill again soon after, there is always the potential that the repeat illness may be related to COVID. Each illness should be handled as a distinct situation, meaning, the employee should not always be considered to be COVID-19 negative because they tested negative previously.

30. Are employers subject to HIPAA privacy rules?

Per the U.S. Department of Health and Human Services’ (HHS) guidance on employers and health information in the workplace, HIPAA’s privacy rule does not protect employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.

Per HHS’ HIPAA information for professionals, the HIPAA Rules apply to covered entities and business associates.

HIPAA-covered entities include health plans, clearinghouses, and certain healthcare providers (e.g., providers who submit HIPAA transactions, like claims, electronically). A business associate is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. A member of the covered entity’s workforce is not a business associate. A covered health care provider, health plan, or health care clearinghouse can be a business associate of another covered entity.

Specifically, the Department of Health and Human services states “Individuals, organizations, and agencies that meet the definition of a covered entity under HIPAA must comply with the Rules’ requirements to protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information. If a covered entity engages a business associate to help it carry out its health care activities and functions, the covered entity must have a written business associate contract or other arrangement with the business associate that establishes specifically what the business associate has been engaged to do and requires the business associate to comply with the Rules’ requirements to protect the privacy and security of protected health information.

In addition to these contractual obligations, business associates are directly liable for compliance with certain provisions of the HIPAA Rules. If an entity does not meet the definition of a covered entity or business associate, it does not have to comply with the HIPAA Rules. See definitions of ‘business associate’ and ‘covered entity’ at 45 CFR 160.103.”

Employers should not forget that HIPAA does apply to an employer’s request for health information from a covered entity. A covered entity may not disclose protected health information to an employer without the employee’s authorization or as otherwise allowed by law. This is true even where the employee is also a patient or member of the covered entity; information maintained in that capacity may not be shared with human resources or an employee’s managers, except as expressly authorized by the employee or applicable law.

Additional information about compliance with HIPAA privacy standards can be found here.

31. Is the Virginia Department of Health (VDH) authorized to receive patient health information under HIPAA?

Yes. The U.S. Department of Health and Human Services permits covered entities and business associates to disclose protected health information without authorization for specified public health purposes. Further information is available here.

32. Is the Virginia Department of Health (VDH) authorized to receive patient health information under the Americans with Disabilities Act (ADA)?

Yes. The U.S. Equal Employment Opportunity Commission (question B3) states an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

33. Is the Virginia Occupational Safety and Health (VOSH) program subject to HIPAA privacy rules?

No. OSHA and states that operate their own occupational safety and health plans, such as VOSH, are not a “covered entity” under HIPAA and are not bound by the use and disclosure requirements included in the HIPAA privacy statute or implementing regulations.

34. How do employers comply with the COVID-19 case reporting requirements to VDH and DOLI contained in 16VAC25-220-40.B.7.d and -40.B.7.e?

16VAC25-220-40.B.7.d and -40.B.7.e require employers to report certain positive COVID-19 cases involving employees “present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period”:

d. The Virginia Department of Health. Every employer as defined by § 40.1-2 of the Code of Virginia shall report to the Virginia Department of Health (VDH) when the work site has had two or more confirmed cases of COVID-19 of its own employees present at the place of employment within a 14-day period testing positive for COVID-19 during that 14-day time period. Employers shall make such a report in a manner specified by VDH, including name, date of birth, and contact information of each case, within 24 hours of becoming aware of such cases. Employers shall continue to report all cases until the local health department has closed the outbreak investigation. After the outbreak investigation is closed, subsequent identification of two or more confirmed cases of COVID-19 shall be reported, as required by this subdivision B 7 d. The following employers are exempt from this provision because of separate outbreak reporting requirements contained in 12VAC5-90-90: any residential or day program, service, or facility licensed or operated by any agency of the Commonwealth, school, child care center, or summer camp; and

e. The Virginia Department of Labor and Industry within 24 hours of the discovery of two or more of its own employees present at the place of employment within a 14-day period testing positive for COVID-19 during that 14-day time period. A reported positive COVID-19 does not need to be reported more than once and will not be used for the purpose of identifying more than one grouping of two or more cases, or more than one 14-day period.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with standard sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies. The portal went live on Monday, September 28, 2020. Here is a link:

https://www.doli.virginia.gov/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

35. An individual provided and paid by a staffing agency works at our facility and test’s positive for COVID-19 (not a workplace transmission). This individual is considered a contractor, but receives day-to-day supervision from full time employees. The response to the FAQ below states that employers need only report its own employees and not contractors. We are requesting clarification to the reporting requirements for these types of contractors.

If your business obtained the worker from a temporary staffing agency and your company supervises them onsite, the worker is not a “contractor” but a temporary employee of the business (commonly referred to as the “host employer”). In temporary employment situations, the host employer is considered to be in a “joint employment” relationship with the temporary staffing agency.

16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this chapter also includes, but is not limited to, temporary employees and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.”

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the standard are the same as for any other VOSH or OSHA standard. See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

https://www.doli.virginia.gov/conronavirus-covid-19-faqs/

With regard to the notification issue, either the host employer or the staffing agency has to notify VOSH – if neither reports it, then both employers could be subject to citation.

The host employer can make an arrangement with the temporary staffing agency that the temporary agency will be the one to notify VOSH, but the host employer needs to make sure that the notification is submitted to avoid any chance of citation.

Here is a link to the reporting portal for whichever employer chooses to do the reporting:

https://redcap.vdh.virginia.gov/redcap/surveys/?s=LRHNP89XPK

36. Can you explain how the VOSH Standard for Infectious Disease Prevention applies to respirators, personal protective equipment and face coverings based on an employer’s assessment of risk levels for hazards and job tasks to which employees are potentially exposed? Following is a table summarizing the acceptable use of respirators, personal protective equipment and face coverings as defined in 16VAC25-220-30 for hazards associated with the SARS-CoV-2 virus and COVID-19 disease.

Table as of February 17, 2021

Acceptable to use as respirator where required by VOSH standards and regulationsAcceptable to use as personal protective equipment (PPE) where required by VOSH standards and regulationsAcceptable to use as a face covering where required by VOSH standards and regulations
N-95 respirator with NO exhalation valve
(approved by NIOSH)
N-95 respirator with NO exhalation valve
(approved by NIOSH)
Acceptable to use as protection for the wearer
EXCEPT in situations where a “sterile field” must be maintained (e.g., during an invasive procedure in an operating room; during aerosol-generating procedures, etc.)
“Surgical mask” and “Face mask” as defined in 16VAC25-220-30 (approved by the FDA)

[1] https://www.doli.virginia.gov/wp-content/uploads/2021/01/Final-Standard-for-Infectious-Disease-Prevention-of-the-Virus-That-Causes-COVID-19-16-VAC25-220-1.27.2021.pdf
[2] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html

“Face covering” as defined in 16VAC25-220-30
KN-95 (not approved by NIOSH as respirator, but approved by China)
Non-medical disposable masks for single use that meet the definition of “face covering” in 16VAC25-220 with the exception that they are not washable
Transparent surgical face mask approved by the FDA[3]
Clear masks or cloth masks with a clear plastic panel that meet CDC guidance[4]

[3] https://www.accessdata.fda.gov/cdrh_docs/pdf20/K200576.pdf

[4] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html

Background

Applicability of federal identical OSHA standards and regulations in Virginia

VOSH standards and regulations identical to their OSHA counterparts that were in place and applicable to covered employers and employees prior to the COVID-19 pandemic are not impacted by any provisions in 16VAC25-220. VOSH is required by the OSH Act of 1970 and OSHA regulations to be “at least as effective as” federal OSHA. VOSH generally follows OSHA interpretations of federal identical standards and regulations:

16VAC25-220-10. Purpose, scope, and applicability.

  1. This chapter is designed to supplement and enhance existing VOSH laws, rules, regulations, and standards applicable directly or indirectly to SARS-CoV-2 virus or COVID-19 disease-related hazards such as, but not limited to, those dealing with personal protective equipment, respiratory protective equipment, sanitation, access to employee exposure and medical records, occupational exposure to hazardous chemicals in laboratories, hazard communication, § 40.1-51.1 A of the Code of Virginia, etc. Should this standard conflict with an existing VOSH rule, regulation, or standard, the more stringent requirement from an occupational safety and health hazard prevention standpoint shall apply….

Federal OSHA Enforcement Guidance on Respirators

VOSH follows the following federal OSHA interpretations on respiratory usage:

Understanding Compliance with OSHA’s Respiratory Protection Standard During the Coronavirus Disease 2019 (COVID-19) Pandemic[1]

[1] https://www.osha.gov/sites/default/files/respiratory-protection-covid19-compliance.pdf

In addition, 16VAC25-220-40.F.6 provides:

16VAC25-220-40. Mandatory requirements for all employers.

F.

  1. Until adequate supplies of respiratory protection and/or personal protective equipment become readily available for non-medical and non-first responder employers and employees, employers shall provide and employees shall wear face coverings while occupying a work vehicle or other transportation with other employees or persons.

Notwithstanding anything to the contrary in this chapter, the Secretary of Labor may exercise discretion in the enforcement of an employer’s failure to provide PPE required by this chapter, if the employer demonstrates that the employer:

  1. Is exercising due diligence to come into compliance with such requirement; and
  2. Is implementing alternative methods and measures to protect employees that are satisfactory to the Secretary of Labor after consultation with the commissioner and the Secretary of Health and Human Services.

Summary of How 16VAC25-220 Applies to Respirators, PPE and Face Coverings

16VAC25-220-40.B.1 provides:

  1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Tasks that are similar in nature and employees exposed to the same hazard may be grouped for classification purposes.

Employers Covered by 16VAC25-220-50 and -60

NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://www.doli.virginia.gov/emergency-temporary-standard-interim-final-rule/

Employers covered by 16VAC25-220-50 must comply with requirements for protecting such employees in 16VAC25-220-40, Mandatory requirements for all employers; and 16VAC25-220-50 and -60, using the occupational safety and health hierarchy of controls to implement mitigation efforts:

  • engineering controls
  • administrative and work practice controls (including sanitation)
  • personal protective equipment[1]
  • respiratory protection equipment

Where it is not feasible to eliminate contact with others inside of six feet, or address the issue through administrative or work practice controls (e.g., telecommuting), such employers must determine what level of personal protective equipment (PPE) must be provided and worn as the last line of protection for employees against the virus.

Employers that are covered by 1910.132 (i.e., a general industry employer) must conduct a SARS-CoV-2 virus and COVID-19 disease-related hazard assessment and personal protective equipment selection in accordance with 1910.132(d). Any employer not currently covered by 1910.132 (e.g., a construction industry employer with a medical clinic) must conduct such an assessment in accordance with 16VAC25-220-50.D.

It is anticipated that employer PPE hazard assessments for employees covered by 16VAC25-220-50 would conclude that employees will be required at a minimum to wear either a respirator or surgical mask or face mask (medical procedure mask). It is also anticipated that in such situations employers would conclude that employees will be required a face shield as defined in 16VAC25-220-130.

[7] https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.132

https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.133

https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.138

Mandatory Face Covering Requirements for All Employers

Unless provided otherwise in the standard, 16VAC25-220-40.G requires that all:

“Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other PPE. Such employees shall wear a face covering or surgical mask that covers the nose and mouth to contain the wearer’s respiratory droplets and help protect others and potentially themselves. This subsection does not apply to fully vaccinated employees in areas of low to moderate community transmission, and except as otherwise noted.

Exceptions to the above requirement are noted in 16VAC25-220-40.G.1-7.

Counterfeit Respirators/Misrepresentation of NIOSH Approval

Please note that there are many documented cases of counterfeit respirators/misrepresentation of NIOSH approval:

https://www.cdc.gov/niosh/npptl/usernotices/counterfeitResp.html

38. Does 16VAC25-220-40.F.4 mean construction employers would need to require employees traveling in a work vehicle to shave off any facial hair (goatee or beard) as part of the fit testing, and also have such employees undergo a medical evaluation?

No, except as noted below, fit testing and medical evaluations are not required by 16VAC25-220-40.F. Facial hair is not prohibited when voluntarily using respirators, but it is discouraged.

NOTE: This interpretation does not apply to situations where employees are occupying a vehicle and exposed to hazards or job tasks classified as very high or high risk exposure as defined in 16VAC25-220-30.

16VAC25-220-40.F provides in part:

  1. When an employee is occupying a vehicle or other form of transportation with one or more employees or other persons for work purposes, employers shall use the hierarchy of hazard controls to mitigate the hazards associated with SARS-CoV-2 and COVID19 to prevent employee exposures in the following order:

This subsection does not apply to fully vaccinated employees in areas of low to moderate community transmission and except as otherwise noted:

  1. When an employee who is not fully vaccinated must share a work vehicle or other transportation with one or more employees or other persons because no other alternatives are available, such employees shall be provided with and wear respiratory protection, such as an N95 filtering face piece respirator, or a face covering at the option of the employee. When an employee who is fully vaccinated must share work vehicles or other transportation with one or more employees or other persons in areas of substantial or high community transmission because no other alternatives are available, such employees shall be provided with and wear face coverings.

Because the first sentence in 16VAC25-220-40.F.4 provides that employers shall provide employees with respiratory protection or a face covering at the option of the employee, the Department interprets the section to mean that any employees who choose to wear a filtering face piece respirator (e.g., N95 respirator) provided by the employer are doing so on a voluntary basis.

In such cases of voluntary use, employers will meet the requirements of 16VAC25-220-40.F.4 if they comply with the following requirements:

  • The employer shall provide the a filtering face piece respirator (e.g., N95 respirator) at no cost to employees;
  • The employer must allow the voluntary use of respirators even where an exposure assessment shows respirator use is not required. The use of respirators is not regarded as mandatory unless required under the standard and/or the employer requires that employees wear respirators regardless of the exposure assessment results.
  • In such cases of voluntary use, the employer must provide the respirator users with the information contained in Appendix D of the standard in accordance with1910.134(c)(2)(i) (“Information for Employees Using Respirators When Not Required Under the Standard”.)
  • In addition, 1910.134(c)(2)(i) also requires the employer to determine “. . . that such respirator use will not in itself create a hazard.”

Please note that if an employer permits the use of respirators other than filtering face pieces, the employer must pay for required medical evaluations for voluntary users and provide voluntary users with appropriate facilities and time to clean, disinfect, maintain, and store respirators.

If employers allow the voluntary use of elastomeric face piece and powered air-purifying respirators (after determining that such use will not itself create a hazard), the employer must implement the elements of a written respiratory protection program necessary to ensure that employees voluntarily using such respirators are medically fit to do so, and that the respirator is cleaned, stored, and maintained so that its use does not present a health hazard to the user. See 1910.134(c)(2)(ii).

39. We are inquiring as the temperature begins to increase some of those outdoor staff would like to not wear the mask the entire time as long as they are not around anyone else or the proper social distance?

Yes, when outside, employees in the situation you describe do not have to wear a face covering as long as they can maintain six feet of physical distancing from others.

40. We have park supervisors that ride around in gators at our sports complex. They always wear mask when they approach people but would like to know whether they can take the mask off when they are in the open gator when there is not another person within 6 feet of them.

Yes, when outside, employees in the situation you describe do not have to wear a face covering as long as they can maintain six feet of physical distancing from others.

Also, please note that there are regulatory requirements for employees that ride together in vehicles contained in 16VAC25-220-40.F:

41. Why is there a stricter standard for face coverings for employees than for customers at a worksite like a physical fitness center?

There are a number of different reasons for having a stricter standard for employees than patrons/customers, regardless of the industry.

First, the OSH Act of 1970 and Virginia laws, standards and regulations require employers to provide a safe and health workplace to employees. While providing for and enforcing workplace safety and health requirements indirectly benefits members of the general public, the primary focus of those laws is employee safety and health.

Second, customers or patrons (See Governor’s Executive Order 79 for face covering guidelines for members of the general public, https://www.governor.virginia.gov/executive-actions/) are at a business voluntarily while employees are required to be there in order to keep their jobs. Customers can “assume the risk” of being potentially exposed to the virus, while no employee should be required or permitted to do so.

Third, customers can limit the length of their exposure at a particular business and can limit the number of businesses they visit on a daily basis to reduce the risk of exposure, while employees are required to be present for the full period of their work shift. It is appropriate to have a stricter face covering requirement for employees who are potentially exposed to the virus for an 8 hour or 10 hour or 12 hour shift, depending on the industry, as opposed to a customer or patron who can limit their exposure to 1 or 2 hours a day simply by being selective about where they go and for how long.

Slowing or preventing the spread of the virus is all about mitigating the risk of exposure by limiting or eliminating possible sources of the virus (both in length of exposure to a particular patron/customer as well as the sheer number of patrons/customers that an employee is exposed to during an entire shift). Since in certain industries employees have to be present for the entire shift, having a stricter face covering requirement is a proven method for reducing the risk of exposure.

42. The CDC updated its guidelines for cleaning and disinfecting workplaces on June 15, 2021. Do the updated guidelines apply to healthcare settings?

No, the updates do not apply to healthcare settings. The updated CDC guidelines can be found at: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here: https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://www.doli.virginia.gov/emergency-temporary-standard-interim-final-rule/

43. The CDC updated its guidelines for cleaning and disinfecting workplaces on June 15, 2021. If there has been a sick person or someone who tested positive for COVID-19 in our workplace within the last 24 hours, do the new CDC guidelines impact requirements in 16VAC25-220-40.L.4 of the standard?

No, the Virginia standard was updated with an effective date of September 8, 2021, and reflects CDC guidance as of that date.

16VAC25-220-40.L.4 provides:

  1. Areas in the place of employment where suspected or confirmed COVID-19 employees or other persons accessed or worked shall be cleaned and disinfected prior to allowing other employees access to the areas as follows:
  2. The provisions in subdivisions 4 b, 4 c, and 4 d of this subsection do not apply to health care settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.
  3. If less than 24 hours have passed since the person who is sick or diagnosed with COVID-19 has been in the space, clean and disinfect the space.
  4. If more than 24 hours have passed since the person who is sick or diagnosed with COVID-19 has been in the space, cleaning is enough. Employers may choose to also disinfect depending on certain conditions or everyday practices required by the facility.
  5. If more than three days have passed since the person who is sick or diagnosed with COVID-19 has been in the space, no additional cleaning or disinfecting beyond regular cleaning practices is needed.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here: https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

44. The CDC updated its guidelines for cleaning and disinfecting workplaces on June 15, 2021. Do the updated CDC guidelines impact the requirements in 16VAC25-220-40.L.5 concerning the cleaning and disinfecting of “bathrooms (including port-a-johns, privies, etc.), frequently touched surfaces, and doors?

No. 16VAC25-220-40.L.5 was revised effective September 8, 2021 to only apply to cleaning, but not disinfecting.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here: https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

45. The CDC updated its guidelines for cleaning and disinfecting workplaces on April 5, 2021. Do the updated CDC guidelines impact the requirements in 16VAC25-220-40.L.6 concerning the cleaning and disinfecting of shared tools, equipment, workspaces, and vehicles?

No. 16VAC25-220-40.L.6 provides:

All shared tools, equipment, workspaces, and vehicles shall be cleaned prior to transfer from one employee to another. This subsection does not apply when the transfer is from one fully vaccinated employee to another fully vaccinated employee.

Because the updated CDC guidelines do not address “shared” tools, equipment, workspaces and vehicles, employers must continue to comply with the requirements in 16VAC25-220-40.L.6.

NOTE 1: The updated CDC guidelines can be found at:

https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

The updated CDC guidance states that it is indicated for cleaning and disinfecting buildings in community settings to reduce the risk of COVID-19 spreading. The updated guidance is not intended for healthcare settings or for operators of facilities such as food and agricultural production or processing workplace settings, manufacturing workplace settings, or food preparation and food service areas where specific regulations or practices for cleaning and disinfection may apply.

The CDC also released a science brief on April 5, 2021 on SARS-CoV-2 and surface (fomite) transmission for indoor community environments available here: https://www.cdc.gov/coronavirus/2019-ncov/more/science-and-research/surface-transmission.html

46. Can team truck drivers from the same household who are the only persons in the vehicle follow the CDC/NIOSH guidelines that do not require the wearing of face coverings while in the truck cab, in lieu of complying with the Virginia Standard requirement to wear respirators/face coverings?

Yes. 16VAC25-220-40.F.7 provides:

  1. For commercial motor vehicles or trucks, if the driver is the only person in the vehicle or truck, or the vehicle or truck is operated by a team who all live in the same household and are the only persons in the vehicle, an employer of such drivers would be considered to be in compliance with subdivisions F 1 through F 5 of this section.

47. On April 27, 2021, the CDC released updated Healthcare Infection Prevention and Control Recommendations, which allow for communal gatherings of fully vaccinated healthcare personnel without source control or physical distancing while dining or conducting in-person meetings. Can healthcare personnel follow the new updated guidance in lieu of complying with 16VAC25-220-40.H?

NOTE: The Virginia Safety and Health Codes Board adopted federal OSHA’s Emergency Temporary Standard (ETS) for Occupational Exposure to COVID–19, 1910.502 et seq., applicable to healthcare services and healthcare support services. The effective date is August 2, 2021 and the ETS shall expire within six months or when repealed by the Board, whichever occurs first, at which time the Board’s Virginia Standard for Infectious Disease Prevention (VS) on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://www.doli.virginia.gov/emergency-temporary-standard-interim-final-rule/

Yes, except as noted below. With regard to the new communal gathering recommendations for employees you reference, the guidance states as follows:

In general, fully vaccinated HCP [healthcare personnel] should continue to wear source control while at work. However, fully vaccinated HCP could dine and socialize together in break rooms and conduct in-person meetings without source control or physical distancing. If unvaccinated HCP are present, everyone should wear source control and unvaccinated HCP should physically distance from others.

https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html

However, on July 27, 2021, the CDC updated its guidance for fully vaccinated people: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

The July 27, 2021, guidance provides that persons who have been fully vaccinated:

To reduce their risk of becoming infected with the Delta variant and potentially spreading it to others, CDC recommends that fully vaccinated people: Wear a mask in public indoor settings if they are in an area of substantial or high transmission….

Healthcare workers can determine if their place of employment is in an area of substantial or high transmission at:

https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

The Virginia Standard provides flexibility for the Department and employers as CDC workplace guidance changes. 16VAC25-220-10.E provides as follows:

To the extent that an employer actually complies with a recommendation contained in current CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard, the employer’s actions shall be considered in compliance with this standard….The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with current CDC guidelines.

As the CDC comes out with revised guidelines for fully vaccinated employees in a public workplace setting, the Department reviews the changes with the Virginia Department of Health (VDH) and addresses any changes in compliance requirements in an FAQ.

In regard to your question about the CDC update to communal gathering requirements and the apparent conflict with 16VAC25-220-40.H, the Department and VDH agree that based on the CDC’s science-based determination that fully vaccinated HCP can safely “dine and socialize together in break rooms and conduct in-person meetings without source control or physical distancing,” such gatherings would be in compliance with and provide employees equivalent protection to 16VAC25-220-40.H, provided that unvaccinated HCP are not present, and provided that the place of employment is not in an area of substantial or high transmission.

48. Must fully vaccinated employees still isolate from others if experiencing COVID-19 symptoms?

Yes. See FAQ 24 for the difference between “isolation” and “quarantine.” Fully vaccinated employees that experience COVID-19 signs or symptoms are classified as “suspected to be infected with SARS-CoV-2 virus” which means a person who has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2, and no alternative diagnosis has been made (e.g., tested positive for influenza), 16VAC25-220-30. In such situations, employers and employees must comply with requirements in 16VAC25-220-40.B.5 and -40.C and as further explained in DOLI FAQs.

NOTE: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

49. If an employer determines that fully vaccinated employees, because of the SARS-CoV-2 virus related hazards or job tasks they are exposed to, must still wear personal protective equipment (including respiratory protection equipment) pursuant to hazard assessment and personal protective equipment selection requirements (conducted in accordance with 1910.132, 16VAC25-220-50.D, and 16VAC25-220-60.D), are employees required to comply?

Yes. All federal OSHA identical standards and regulations enforced by VOSH (e.g., 29 CFR Part 1910) apply to all covered employers and employees, except where otherwise exempted by §4(b)(1) of the OSH Act of 1970. Two such standards are the Personal Protective Equipment (PPE) (1910.132) and Respiratory Protection (1910.134) standards. COVID-19 is a respiratory disease that spreads easily through exposure to respiratory fluids carrying infectious virus (i.e., through 1) inhalation of droplets and aerosol particles, 2) deposition of respiratory droplets and particles on exposed mucous membranes in the mouth, nose, or eye by direct splashes and sprays, or 3) touching mucous membranes with hands that have been soiled either directly by virus-containing respiratory fluids or indirectly by touching surfaces with virus on them) between persons in contact with each other inside six feet, so the PPE and Respirator Standards are considered applicable.

Va. Code §40.1-51.2(a), rights and duties of employees provides as follows:

(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.

NOTE 1: A surgical/medical procedure mask is considered a form of personal protective equipment (testing and approval is cleared by the U.S. Food and Drug Administration (FDA)), but is not considered respiratory protection equipment. Many face coverings are not subject to testing and approval by a state or federal government agency, and in such cases are not considered a form of personal protective equipment or respiratory protection equipment, but are an acceptable alternative in certain situations under the VS. See §40, FAQ 36 for further information on how the VS applies to respirators, personal protective equipment and face coverings based on an employer’s assessment of risk levels for hazards and job tasks to which employees are potentially exposed.

NOTE 2: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

50. If an employer determines that fully vaccinated employees must still wear face coverings and/or physical distance while at work, must employees comply?

Yes. Va. Code §40.1-51.2(a), rights and duties of employees provides as follows:

(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.

Employers have the duty to “to furnish to each of his employees safe employment and a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” Va. Code §40.1-51.1.A; and the right to establish workplace safety and health rules and to enforce them, 16VAC25-60-260.B.

NOTE 1: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

51. Are employees that are unvaccinated or not fully vaccinated still required to wear face coverings or other personal protective equipment, including respirators, in the workplace?

Yes. 16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

NOTE 1: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

52. Are fully vaccinated employees in correctional facilities and homeless shelters still required to wear face coverings or other personal protective equipment, including respirators, in the workplace?

Yes, in certain circumstances as described below.

Yes. 16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

NOTE 1: Correctional facilities, jails detention centers, and juvenile detention centers can be classified as high risk workplaces, which are covered by additional requirements in 16VAC25-220-60.

NOTE 2: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

53. Are fully vaccinated employees still required to wear face coverings or other personal protective equipment, including respirators, while working in planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and while working in U.S. transportation hubs such as airports and stations?

Yes. In addition to the requirements contained in 16VAC25-220, the federal Transportation Security Administration (TSA) has an ongoing face mask [face covering] mandate in place for employees “across all transportation networks throughout the United States, including at airports, onboard commercial aircraft, on over-the-road buses, and on commuter bus and rail systems through September 13, 2021.”

References: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

https://www.tsa.gov/news/press/releases/2021/04/30/tsa-extends-face-mask-requirement-airports-and-throughout

https://www.tsa.gov/sites/default/files/sd-1582_84-21-01.pdf

NOTE: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

54. Are fully vaccinated employees in K-12 education still required to wear face coverings in the workplace under Executive Order 72?

Yes.

The Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, has mandatory requirements for all employers in 16VAC25-220-40 and specific requirements for employees higher-risk workplaces in 16VAC25-220-60, which is the category that would apply to most K-12 educational settings with large numbers of unvaccinated children.

16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

On July 27, 2021, the CDC updated its guidance for fully vaccinated people:

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

The July 27, 2021, guidance provides that persons who have been fully vaccinated:

CDC recommends universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status. Children should return to full-time in-person learning in the fall with layered prevention strategies in place.

As the CDC comes out with revised guidelines for fully vaccinated employees in a public workplace setting, the Department reviews the changes with the Virginia Department of Health (VDH) and addresses any changes in compliance requirements in an FAQ.

Because of the above cited changes to CDC guidance, K-12 employers must continue to comply with the physical distancing/face covering requirements for employees in the Virginia Standard and cannot take advantage of the provision in 16VAC25-220-10.E.

NOTE: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

55. Can fully vaccinated employees in non-healthcare workplace settings stop wearing face coverings as otherwise required by 16VAC25-220?

Yes, except as otherwise noted in these FAQs, including FAQs 46-57, and only in areas of moderate and low COVID-19 transmission.

16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

NOTE 1: For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen)±; there is currently no post-vaccination time limit on fully vaccinated status. This guidance can also be applied to COVID-19 vaccines that have been authorized for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford). Unvaccinated people refers to individuals of all ages, including children, that have not completed a vaccination series or received a single-dose vaccine.

However, at this time, there are limited data on vaccine protection in people who are immunocompromised. People with immunocompromising conditions, including those taking immunosuppressive medications (for instance drugs, such as mycophenolate and rituximab, to suppress rejection of transplanted organs or to treat rheumatologic conditions), should discuss the need for personal protective measures with their healthcare provider after vaccination.

Reference: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html

NOTE 2: Should VOSH conduct an inspection of an employer where it is alleged that violations of 16VAC25-220-40.F, -40.G, -40.H, -60.C.10, or -60.C.11 occurred because one or more exposed employees were not fully vaccinated, no citation shall issue with regard to an exposed employee where the employer can demonstrate that the employee was fully vaccinated at the time of exposure.

56. With the CDC updated guidance on fully vaccinated employees issued on May 13, 2021, are employers still required to conduct daily health assessments/screenings?

Yes, but only for employees that are covered by 16VAC25-220-50 and -60.

The Virginia Standard does not require daily health assessments or daily screenings of employees that are not covered by 16VAC25-220-50 and -60. Instead, 16VAC25-220-40.B.4 provides:

  1. Employers shall develop and implement policies and procedures for employees to report when they are experiencing signs or symptoms consistent with COVID-19, and no alternative diagnosis has been made (e.g., tested positive for influenza). Such employees shall be designated by the employer as suspected COVID-19.

See CDC guidance for fully vaccinated people that are experiencing COVID-19 signs or symptoms; and for fully vaccinated people that have tested positive for COVID-19 in the prior 10 days at:

https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html#:~:text=Guiding%20Principles%20for%20Fully%20Vaccinated%20People,-Indoor%20and%20outdoor&text=Fully%20vaccinated%20people%20should%20still,are%20experiencing%20COVID%2D19%20symptoms.

57. Are child care providers and staff required to wear face masks at work, regardless of vaccination status?

Yes. The Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, has mandatory requirements for all employers in 16VAC25-220-40 and specific requirements for employees in higher-risk workplaces in 16VAC25-220-60, which is the category that would apply to most child care settings with large numbers of unvaccinated children.

16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

You can determine if your place of employment is in an area of substantial or high transmission at: https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/community-transmission/

The CDC’s “Guidance for Operating Child Care Programs during COVID-19,” which was last updated July 9, 2021, provides:

“Most ECE programs serve children under the age of 12 who are not yet eligible for vaccination at this time. Therefore, this guidance emphasizes implementing layered COVID-19 prevention strategies (e.g., using multiple prevention strategies together) to protect children and adults who are not fully vaccinated.”

https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/child-care-guidance.html

Because the CDC states that masks should be worn indoors by all individuals (ages 2 and older) who are not fully vaccinated and that early care/child care settings may implement universal mask use in some situations, such as if they serve a population not yet eligible for vaccination or if they have increasing, substantial, or high COVID-19 transmission in their ECE program or community, employers cannot take advantage of the provision in 16VAC25-220-10.E,

58. Are employers with air-handling systems under their control required to ensure that such systems are installed, maintained and repaired in accordance with the manufacturer's instructions?

Yes. The Virginia Safety and Health Codes Board adopted the following regulations in 2006 which contain nearly identical language:

  • 16VAC25-60-120.B (General Industry)
  • 16VAC25-60-130.B (Construction Industry)
  • 16VAC25-60-140.C (Agriculture)
  • 16VAC25-60-150.B (Public Sector Maritime)

16VAC25-60-120.B provides for general industry employers:

  1. The employer shall comply with the manufacturer’s specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation.

It is the Department’s position that air handling systems consist of “machinery,” “materials” and “equipment” and that employers must “comply with the manufacturer’s specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of” such air handling systems.

NOTE: 16VAC25-220-50.B.1.a provides that “Employers shall ensure that appropriate air-handling systems under their control: a. Are installed and maintained in accordance with the USBC and manufacturer’s instructions in health care facilities and other places of employment….”

16VAC25-220-60.B.1.a provides that “Employers shall ensure that air-handling systems under their control: a. Are maintained in accordance with the manufacturer’s instructions….”

§50 Requirements for health care services or health care support services.

1. Has Virginia adopted federal OSHA's Emergency Temporary Standard applicable to healthcare services and healthcare support services?

Yes. The effective date is August 2, 2021 and the Emergency Temporary Standard (ETS) will expire within six months or when repealed by the Board, whichever occurs first, at which time the Virginia standard on COVID-19, 16VAC25-220, will reapply to those industries.

For further information, see:

https://www.doli.virginia.gov/emergency-temporary-standard-interim-final-rule/

2. Was it the intent of the revised Virginia standard to have it apply “off-site healthcare support services not performed in a health care setting” healthcare support services?

Yes. The OSHA ETS specifically excluded coverage of “healthcare support services not performed in a healthcare setting,” 1910.502(a)(2)(vi), and in a number of other healthcare related area, and in lieu of coverage under the OSHA ETS, such services are automatically covered by the Virginia standard.

3. Are diagnostic laboratories that conduct routine medical testing and environmental specimen testing for COVID-19 required to operate at Biosafety Level 3 (BSL-3)?

No. 16VAC25-220-50.B.6 provides that:

6….Diagnostic laboratories that conduct routine medical testing and environmental specimen testing for COVID-19are not required to operate at BSL-3.

§60 Requirements for higher-risk workplaces

1. Do the air-handling system requirements in §60 require employers to install air conditioning systems where no system is currently in place?

No. 16VAC25-220-60.B.1 specifically applies to air-handling systems under the control of the employer.

2. What is an employer required to do if a non-employee (e.g. customer or visitor) is suspected to be infected with the SARS-CoV-2 virus?

16VAC25-220-60.C.2 provides that:

To the extent feasible, employers shall…

  1. Provide face coverings to suspected COVID-19 non-employees to contain respiratory secretions until they are able to leave the site (i.e., for medical evaluation/care or to return home).

Section 30 provides that:

“Suspected COVID-19” means a person who has been told by a licensed health care provider that they are suspected to have COVID-19; or is experiencing recent loss of taste and/or smell with no other explanation; or is experiencing both fever (greater than or equal to 100.4° F) and new unexplained cough associated with shortness of breath; or has symptoms consistent with the clinical criteria in the CDC national case definition and no other explanation for symptoms exist.

3. When are employees required to wear face coverings under the standard?

16VAC25-220-40.G, Mandatory requirements for all employers, contains a face covering requirement for “employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition).”

16VAC25-220-40.G further provides a list of exceptions to the face covering requirement, including when an employee is alone in a room, etc.

§70 Infectious disease preparedness and response plan.

1. Does an employer with a higher risk workplace have to have a written Infectious Disease Preparedness and Response Plan?

Employers with a higher risk workplace that employ eleven (11) or more employees must have a written Infectious Disease Preparedness and Response Plan. In counting the number of employees, the employer may exclude fully vaccinated employees.

2. Does the Infectious disease preparedness and response plan need to be submitted to anyone at VOSH or do we just need to have it on hand in case we are asked for it?

The plan does not have to be submitted to VOSH unless it is specifically requested. It should be available for review if a VOSH inspection is conducted at the establishment.

3. Are Virginia Farmers Markets required to have an infectious disease plan? Many markets do not have 11 employees but all markets have at least 11 vendors under contract with the market to work at the market selling their products. Are markets that have under 11 “employees” but have 11 plus vendors that are under contract to work /sell at Virginia’s farmers markets considered the same as employees and therefore the markets should have an infectious disease plan?

Employers covered by 16VAC25-220-60, Requirements for higher-risk workplaces, are required to have a written Infectious disease preparedness and response plan if they have 11 or more employees. In counting the number of employees, the employer may exclude fully vaccinated employees.

Higher-risk workplaces include high customer volume workplaces. Depending on level of customer volume, some farmer’s markets could be covered by 16VAC25-220-60, while others would not.

As described in your question, a vendor would be considered an “independent contractor” and not an employee for purposes Virginia Occupational Safety and Health (VOSH) laws, standards and regulations. The standard’s requirement for an Infectious Disease Preparedness and Response Plan applies to “higher risk workplaces” when they have 11 or more employees.

Accordingly, only those high customer volume farmer’s market organizers that have 11 or more employees, or those high customer volume vendors who have 11 or more employees are required to have an Infectious Disease Preparedness and Response Plan. The vendors would not be considered employees of the farmer’s market organizer.

However, in case you are not aware of the issue, the Department wants to make sure you are familiar with an employment practice where some businesses will attempt to misclassify employees as “independent contractors” to avoid having to comply with federal and state legal protections for employees (e.g., workers’ compensation, occupational safety and health protections, unemployment compensation, etc.).

This practice is referred to as “misclassification” and when attempted by an employer can result in serious enforcement consequences from a variety of agencies including VOSH, the Virginia Employment Commission, the Virginia Department of Taxation, etc. Employers who engage in misclassification also open themselves up to the potential of being sued by employees who allege they were misclassified (See Va. Code 40.1-28.7:7, https://law.lis.virginia.gov/vacode/40.1-28.7:7/ ).

Here is a link to VOSH policy on the issue of worker misclassification for your information: https://www.doli.virginia.gov/vosh-programs/misclassification-in-the-workplace/

Based on the description of the contractual relationship you described between farmer’s market organizers and vendors, it does not appear that misclassification should be an issue for your organization, but we want to make sure you were aware of the issue.

4. Will employers who already completed training under 16VAC25-220-70 and 16VAC25-220-220-80 of the ETS be required to train employees on the VOSH Standard for Infectious Disease Prevention? And therefore would those covered by 16VAC25.220-50 be required to provide new written certifications?

The answer to both questions is yes. Employees who were previously trained on the requirements of the ETS must be trained on the VOSH Standard for Infectious Disease Prevention. However, because there are similarities between the ETS and the VOSH Standard for Infectious Disease Prevention, an employer will be considered to be in compliance with 16VAC25-220-80 if they provide training to such employees on the following summary of significant changes:

https://www.doli.virginia.gov/wp-content/uploads/2021/01/Summary-of-Significant-Changes-From-ETS-to-Final-Permanent-Standard-1.27.2021.pdf

A written certification pursuant to 16VAC25-220-80.C is required for such employees also covered by 16VAC25-220-50. Please note that the VOSH Standard for Infectious Disease Prevention includes the following new provision in 16VAC25-220-80.C.2:

  1. A physical or electronic signature is not necessary if other documentation of training completion can be provided (e.g., electronic certification through a training system, security precautions that enable the employer to demonstrate that training was accessed by passwords and usernames unique to each employee, etc.).

Employees hired on or after January 27, 2021 need only be trained on the VOSH Standard for Infectious Disease Prevention. Such training must be completed by March 26, 2021.

Please also see the Department’s Outreach, Training and Education webpage for a document that shows all changes made from the ETS to the VOSH Standard for Infectious Disease Prevention (deleted language is struckthrough and new language is underlined).

https://www.doli.virginia.gov/covid-19-outreach-education-and-training/

NOTE: Please note that such new training provided to employees previously trained on the ETS would not be considered “retraining” under the VOSH Standard for Infectious Disease Prevention. 16VAC25-220-80.D contains specific criteria for when an employee must be retrained on the standard (e.g., Inadequacies in an affected employee’s knowledge or use of workplace control measures indicate that the employee has not retained the requisite understanding or skill.).

§80 Training.

1. Are employers required to provide training to an employee in a language other than English or in some other manner that they can understand, if the employee does not understand English?

Yes. OSHA (and VOSH) have “a long and consistent history of interpreting its standards and other requirements to require employers to present information in a manner that their employees can understand.”

“In practical terms, this means that an employer must instruct its employees using both a language and vocabulary that the employees can understand. For example, if an employee does not speak or comprehend English, instruction must be provided in a language the employee can understand. Similarly, if the employee’s vocabulary is limited, the training must account for that limitation. By the same token, if employees are not literate, telling them to read training materials will not satisfy the employer’s training obligation. As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in language other than English….”

“Many OSHA standards require that employees receive training so that work will be performed in a safe and healthful manner. Some of these standards require “training” or “instruction,” others require “adequate” or “effective” training or instruction, and still others require training “in a manner” or “in language” that is understandable to employees. It is the Agency’s position that, regardless of the precise regulatory language, the terms “train” and “instruct,” as well as other synonyms, mean to present information in a manner that employees receiving it are capable of understanding. This follows from both the purpose of the standards — providing employees with information that will allow work to be performed in a safe and healthful manner that complies with OSHA requirements — and the basic definition that implies the information is presented in a manner the recipient is capable of understanding.”

NOTE: It is VOSH’s intent to provide outreach, education, and training materials on the standard in English and Spanish.

2. Our franchise network utilizes an online learning management system to provide most of our trainings. This system does not currently have the ability for employees to submit an electronic signature. However, the system has multiple other data points that can verify that a particular person completed the training, such as login date/time, completion status of the training, and a certificate of completion for each employee. Employees must use unique passwords and usernames to log in. Would the certification standard be satisfied by using a learning management system, or do we still need to collect signatures from the employee and employer to satisfy the standard? Our thought is that the unique account used to complete training and the objective markers showing the training was completed are effectively an electronic unique “signature.

16VAC25-80.C provides in part that:

Employers covered by 16VAC25-220-50 shall verify compliance with 16VAC25-220-80.A by preparing a written certification record for those employees covered by the training requirements. The written certification record shall contain the name or other unique identifier of the employee trained, the trained employee’s physical or electronic signature….16VAC25-220-80.C.1.

16VAC25-220-80.C.2 addresses the issue raised in the question:

  1. A physical or electronic signature is not necessary if other documentation of training completion can be provided (e.g., electronic certification through a training system, security precautions that enable the employer to demonstrate that training was accessed by passwords and usernames unique to each employee, etc.).

4. Will employers who already completed training under 16VAC25-220-70 and 16VAC25-220-220-80 of the Virginia standard in effect from January 27, 2021 to September 7, 2021 be required to train employees on the standard? And therefore would those covered by 16VAC25.220-50 be required to provide new written certifications?

The answer to both questions is yes. Employees who were trained on the requirements of the previous standard must be trained on the revised standard that took effect on September 8, 2021.

A written certification pursuant to 16VAC25-220-80.C is required for such employees also covered by 16VAC25-220-50. Please note that the standard includes the following new provision in 16VAC25-220-80.C.2:

  1. A physical or electronic signature is not necessary if other documentation of training completion can be provided (e.g., electronic certification through a training system, security precautions that enable the employer to demonstrate that training was accessed by passwords and usernames unique to each employee, etc.).

Such training must be completed by November 7, 2021.

Please also see the Department’s Outreach, Training and Education webpage for free training documents.

NOTE: Please note that such new training provided to employees previously trained on the ETS would not be considered “retraining” under the standard. 16VAC25-220-80.D contains specific criteria for when an employee must be retrained on the standard (e.g., Inadequacies in an affected employee’s knowledge or use of workplace control measures indicate that the employee has not retained the requisite understanding or skill).

§90 Discrimination against an employee for exercising rights under this standard is prohibited.

1. The states that no person that raises a COVID-19 concern in “print, online, social or any other media” can be disciplined or terminated for doing so. If a person is lying on social media and NEVER raised the concern to VOSH or management, they should not be insulated from disciplinary action. Isn’t this broader than the existing OSHA regulations themselves?

No. Pursuant to Va. Code §40.1-51.2:1, employees are protected from discrimination when they engage in activities protected by Title 40.1 of the Code of Virginia (“because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.”).

Whether an employee engaged in a “protected activity” under Title 40.1 is very fact specific, but can include occupational safety and health information shared by an employee about their employer on a social media platform in certain situations.

With regard to the specific situation described above, §90.C provides that:

  1. No person shall discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.

Where “a person is lying on social media,” such an act by an employee would not be considered “reasonable” under the standard and disciplinary action taken against the employee in accordance with the employer’s human resource policies would not be considered “discrimination” under the standard or Va. Code §40.1-51.2:1.

For further background see §16VAC25-60-110. Whistleblower Discrimination; Discharge or Retaliation; Remedy for Retaliation:

A. In carrying out his duties under § 40.1-51.2:2 of the Code of Virginia, the commissioner shall consider case law, regulations, and formal policies of federal OSHA. An employee’s engagement in activities protected by Title 40.1 does not automatically render him immune from discharge or discipline for legitimate reasons. Termination or other disciplinary action may be taken for a combination of reasons, involving both discriminatory and nondiscriminatory motivations. In such a case, a violation of § 40.1-51.2:1 of the Code of Virginia has occurred if the protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place “but for” engagement in protected activity.

Employee whistleblower activities, protected by § 40.1-51.2:1 of the Code of Virginia, include:

  1. Making any complaint to his employer or any other person under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
  2. Instituting or causing to be instituted any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
  3. Testifying or intending to testify in any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;
  4. Cooperating with or providing information to the commissioner during a worksite inspection; or
  5. Exercising on his own behalf or on behalf of any other employee any right afforded by the safety and health provisions of Title 40.1 of the Code of Virginia.

2. Please advise where I can receive a free copy of the new Virginia Department of Labor Discrimination Notice with new protected classes.

Here is a link to the Office of Whistleblower Protection with the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) program:

https://www.doli.virginia.gov/vosh-programs/whistleblower/

As noted in the above link:

Workers in Virginia have the right to complain to VOSH and seek an investigation of alleged workplace safety and health retaliation. Virginia Code §40.1-51.2:1 and -51.2:2 authorizes VOSH to investigate employee complaints of employer retaliation against employees who are involved in safety and health activities protected under the Virginia laws, standards and regulations.

3. If an employee, even if fully vaccinated, chooses to continue wearing their own face covering or other personal protective equipment PPE, including a respirator, to protect against potential exposure to the SARS-CoV-2 virus, can an employer discharge or in any way discriminate against the employee?

16VAC25-220-90.B provides as follows:

No person shall discharge or in any way discriminate against an employee who voluntarily provides and wears the employee’s own personal protective equipment, including, but not limited to, a respirator, face shield, gown, or gloves, provided that the PPE does not create a greater hazard to the employee or create a serious hazard for other employees. In situations where face coverings are not provided by the employer, no person shall discharge or in any way discriminate against an employee who voluntarily provides and wears the employee’s own face covering that meets the requirements of this standard, provided that the face covering does not create a greater hazard to the employee or create a serious hazard for other employees. Nothing in this subsection shall be construed to prohibit an employer from establishing and enforcing legally permissible dress code or similar requirement addressing the exterior appearance of personal protective equipment or face coverings. (Emphasis added).

In addition, in situations where face coverings are not provided by the employer, employees who voluntarily provide and wear their own face covering or other PPE that meets the requirements of this standard may do so and are protected from discharge or other form of discrimination, provided that the face covering does not create a greater hazard to the employee or create a serious hazard for other employees.

NOTE: Section 1910.134(c)(2)(ii), of the Respiratory Protection Standard requires employers to provide certain information contained in Appendix D of the respiratory protection standard[1] to employees who wear respirators, such as N95 filtering facepiece respirators, on a voluntarily basis. Federal OSHA has also published a letter of interpretation regarding this requirement:

https://www.osha.gov/laws-regs/standardinterpretations/2006-02-06-0.

[1] https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134AppD