By Conn Maciel Carey’s COVID-19 Task Force

As we have been updating you about here, on July 27th, the Virginia Occupational Safety and Health Administration (VOSH) adopted a COVID-19 Emergency Temporary Standard (ETS).  There are some important deadlines fast approaching under that new rule:

1. Conduct a COVID-19 Hazard Assessment to categorize the risk exposures at the workplace (due by Aug. 26^th);
2. Deliver the first of two COVID-19 employee training events (due by Aug. 26^th); and
3. Implement a written infectious disease preparedness and response plan (due by Sept. 25^th).

We have been helping our clients quickly get up to speed on the new emergency rule.  As part of that effort, we co-hosted a webinar with the head of VOSH’s Consultation Program and also prepared an FAQ document about the new rule.

But while everyone is scrambling to come into compliance with the emergency rule, we want to highlight another big development with the Virginia rule that has a fast-approaching deadline – that is, VOSH’s effort to prepare a permanent infectious disease standard.

The ETS is, of course, just a temporary standard, but by regulation, VOSH is required to commence a rulemaking to promulgate a permanent standard soon after issuing an ETS.  By publication of the ETS in July, VOSH simultaneously gave notice that the Standards Board intends to adopt a permanent infectious disease standard, and the ETS serves as the proposed rule.  Here is a link to the Proposed Permanent Standard for Infectious Disease Prevention.  The agency intends to finalize the permanent rule within six months, with an effective date no later than January 27, 2021.

Unless VOSH can be convinced otherwise via the public participation process, the COVID-19 emergency rule will become a permanent infectious disease standard governing facilities in Virginia indefinitely, long after the COVID-19 pandemic is in the rear view mirror.

We are talking with trade associations and businesses that have facilities or major operations in Virginia about preparing comments on the permanent infectious disease standard that VOSH has proposed.  The deadline for comments is fast-approaching, with comments due by September 25^th.

The objective of the comments would be to persuade VOSH either that:

• this standard, although appropriate during a pandemic as an emergency and temporary measure, is unnecessary from an employee health standpoint and overly burdensome if established as a permanent infectious disease control standard applicable in non-pandemic times; and/or
• at a minimum, certain requirements in the standard (e.g., the very fast notifications of work-related and non-work related infections to VOSH and the VA Dept. of Health, or the task-by-task hazard assessment requirement, etc.), should be revised or eliminated.

If your company or association is concerned about the establishment of a permanent infectious disease standard in Virginia and would like to work with us to prepare comments on the proposed rule, please let us know.