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Virginia Department of Labor and Industry – Emergency Temporary Standards and Emergency Regulations

*This memorandum does not constitute legal advice.  Please seek the advice of counsel for specific questions or interpretations. Given that the draft regulations just posted June 12, we are providing a very high level first read overview for members and will supplement it if needed.

Recently, the Virginia Department of Labor and Industry (DOLI) published draft emergency temporary standards and emergency regulations that apply to all employers in the Commonwealth, including dental practices. These apply to infectious disease prevention, mitigation, and control relating to SARS-CoV-2 virus that causes COVID-19.

The draft regulations will be finalized and voted on at the next DOLI meeting which has been scheduled for June 24.

The regulations and explanation documents can be found at the link below:

The emergency temporary standards and the emergency regulations are intended to supplement and enhance existing Virginia Occupational Safety and Health (VOSH) laws.  In the event of a conflict, the more stringent rule will apply.

The regulations require each employer to categorize all full time and part time employees into one of the four following categories based upon the exposure risks.  This also includes supervisory personnel and management personnel.   The regulations layer or define various standards and requirements based upon the category the employee falls in.  The categories are: “very high,” “high,” “medium,” or “lower.” The regulations provide factors to consider in categorizing employees.

Members should make the determination for each of its employees consistent with the definitions in the draft.

All employers are required to verify that the COVID-19 workplace hazard assessment has been performed via a written certification that includes the name of the person performing the certification.  The written document must be identified as a “Certification of Hazzard Assessment.”

There is one effective date for the emergency temporary standards and another effective date for the emergency regulations. After adoption on June 24, the emergency temporary standards will be published in the Richmond Times Dispatch and effective immediately. 

The emergency temporary standards will expire within six months of the effective date, or when superseded by permanent standard (which ever occurs first) or when repealed by the Virginia Safety and Health Codes Board.

The emergency regulations shall become effective when signed by the Governor and published in the Virginia Register.  Emergency regulations are effective for up to 18 months.

The draft contains over ten pages of definitions that are used in the regulations.  The definitions are a key element to ensuring compliance by employers.

The draft contains minimum mandatory requirements by which all employers must abide. Many of these requirements reflect CDC recommendations that most employers are following today and best practices that should already be addressed in workplace policies and procedures. If your members have not developed policies and procedures, they should do so immediately.

Policies and procedures must address issues such as screening, return to work, reporting symptoms, handling of symptomatic employees, physical distancing, access to break rooms or lunchroom, appropriate respiratory or other equipment when using vehicles, etc.

The draft requires detailed plans for sanitation requirements over and above VOSH. For example, “all common spaces, including bathrooms, frequently touched surfaces and doors shall at a minimum be cleaned and disinfected at the end of each shift.”  If instruments or equipment are shared by employees, they must be cleaned prior to transfer from one employee to another.

Employers with employees categorized as “very high,” “high,” or greater than 11 employees categorized as “medium,” are required to develop and implement a written “Infectious Disease Preparedness and Response Plan.”  Dental practices under practice management agreements should pay careful attention to employee totals  Employers must designate a person responsible for implementing the plan.  The draft lists the requirements that such plans must address.

Employers of employees categorized as “very high” or “high” risks have mandated training obligations and documentation of training and retraining.

The draft contains anti-discrimination provisions that prohibit an employer from discharging or discriminating against an employee for exercising their rights under the standards or regulations.

No employee can be discharge or discriminated against for voluntarily providing their own PPE, if such equipment is not provided for by the employer, “provided the PPE does not create a greater hazard to the employee or create a serous hazard for other employees.”

No employee can be discharged or discriminated against for raising a reasonable concern about COVID-19 infection control to the employer, other employees, on to the public “such as through print, online, social or any other media.”