Below is a round-up of workplace compliance rules and regulations employers need to know to keep their business compliant. If you believe there may be a discrepancy between a state and local order that affects you or your business, you should contact your local government and/or competent local counsel for further advice.
Alabama COVID-19 State Regulations
NEW: Face Covering Mandate Ends
Effective April 9, 2021, to 5 pm on May 5, 2021, the statewide face mask mandate ended. Everyone is still encouraged to wear a face covering when in public settings or near other people.
Employers and places of worship may encourage their employees and customers to face coverings, maintain social distance, to stay home when sick, and use proper sanitization and hygiene practices. They may also require masks and social distancing
Hospitals and nursing homes still have occupancy limits and may only allow a maximum of 2 visitors per patient.
The order supersedes any other county or local order. Once it ends on May 5, cities may extend their own mask orders.
What Should You Do?
- Review your current face covering policies and procedures and determine if you need to make any changes. See legal counsel regarding any changes you make.
Governor Kay Ivey signed a liability shield protection law on February 12, 2021, SB 30, effective upon signature to protect businesses, health care providers, education institutions, places of worship, and government entities from COVID-19 claims. The exception is any case where there was “wanton, reckless, willful, or intentional misconduct.”
This legislation is currently effective and retroactive for any claims submitted between March 13, 2020, to December 31, 2021.
Who: Alabama employers and employees
When: March 23, 2020
Updated 11/8/20: Final Rule 480-4-2-.19 was issued to extend the emergency requirements for employers to notify employees of their unemployment benefits at the time of separation. This rule is effective on November 14, 2020.
The Alabama Department of Labor has expanded unemployment benefits to include employees who are unable to work because of COVID-19. Employees are eligible to file a claim if they are:
- Placed under quarantine by a medical care provider or government agency;
- Laid off or sent home without pay because of concerns about COVID-19;
- Diagnosed with COVID-19; or are
- Caring for an immediate family member diagnosed with COVID-19
The ability of a worker to be ready and able to work will be altered based on the above concerns. Claimants won’t have to look for work during this time, but they will need to ensure they can return to work following an illness or quarantine.
Employees who work from home or receive sick or vacation time off aren’t eligible for unemployment.
Update 8/13/20: Starting July 10, 2020, employers are required to provide a notice about unemployment benefits upon separation. The required notice can be made by text message, flyer, or letter. The required language can be found on the Alabama Emergency Rule starting on Page 3. Additionally, the Alabama Department of Labor has new hire obligations for reporting returned furlough employees. Employers should review new hires and recalled employees for the past 12 months and ensure that they have met all reporting requirements for these workers.
- Review your current business practices and update your unemployment policies to reflect this new policy.
- As your business responds to the coronavirus, educate and inform your employees about all of their available options, as appropriate.
Arkansas COVID-19 State Regulations
Updated 4/5/21: Face Covering Mandate Rescinded
Update 4/5/2021: Governor Asa Hutchison announced a lift on the state’s mask mandate as of March 30, 2021, but stated that businesses may continue to require face masks and everyone should respect and adhere to those rules. The Arkansas Department of Health published Face Coverings Guidance on March 31, 2021, recommending that everyone continue to wear face masks in indoor settings when they are exposed to people outside their immediate household.
Update 10/5/20: The Face Covering Directive was updated to clarify that plastic face shields aren’t a mask or face covering substitute, although face coverings or masks that use a plastic space to display a person’s mouth (like those used for people who are hard of hearing or deaf) are acceptable.
Update 8/28/20: The Face Covering Directive was updated to ban valves on face coverings and discourage the use of single-layered bandanas and gaiters, see Page 2.
In Executive Order 20-43, Governor Asa Hutchinson declared that as of July 20, 2020, everyone in the state is required to wear a face covering over their mouth and nose in all indoor and outdoor situations where they are interacting with people outside of their household and can’t maintain a social distance of 6 feet.
There are several exceptions to this rule that can be found towards the end of page 2 of the Executive Order 20-43. The Arkansas Department of Health also issued a Face Coverings Directive with information about the exemptions.
Previously, Executive Order 20-41 allowed local jurisdictions to mandate face coverings.
Strategy for Preventing COVID-19 Spread this Winter (November 3, 2020)
Florida COVID-19 State Regulations
Georgia COVID-19 State Regulations
Liability Law Effective
Who: Georgia businesses
When: Effective August 7, 2020 and applies to claims until July 14, 2021
What: SB 359,known as the Georgia COVID-19 Pandemic Business Safety Act, took effect on August 7, 2020 to protect businesses from employee and customer liability claims related to COVID-19, as long as there wasn’t gross negligence, willful and wanton misconduct, or reckless or intentional harm.
There are additional steps that businesses can take to protect their liability. One option is to use specific language on receipt, proof of purchase, wristband, ticket, etc. that states, in at least 10-point Arial font away from other text:
A business, including health care facilities and providers, can also post at the point of entry a sign that uses at least a one-inch Arial font placed apart from other text that says:
Face Coverings and Masks
When: Starting April 27, 2020
Employees at restaurants and clubs must wear face coverings and ensure they are clean and replaced every day.
Emergency Unemployment Changes
Who: Georgia employers
When: Effective Immediately for the next 120 days or until the current rule changes or a new one proposed.
The Georgia Department of Labor (GDOL) has closed to the public, but online access is available for unemployment and reemployment services. GDOL passed emergency rules for employers who file partial unemployment claims on behalf of their full-time employees:
- All partial claims must be filed by employers online in the Employer Portal;
- All employers must file partial claims bearing in mind any week the employee works less than full-time due to the partial or complete shutdown of the company because of a COVID-19 public health emergency; and
- Any employer in violation of this rule must pay the Commissioner the full amount of benefits paid to the employee.
There are several scenarios when employers shouldn’t file a partial claim, including when employees:
- Will be paid for a temporary layoff period (paid sick, paid vacation, etc.);
- Were on previously scheduled leave before the layoff period (leave of absence or medical leave);
- Are employed by a temporary agency and are currently working at your place of business;
- Were employed in another state the last 18 months (employees can apply online themselves);
- Were employed by the federal government or on active military service in the last 18 months (employees can apply online themselves).
When submitting a claim, employers are reminded to:
- Report the employee’s name, social security number, date of birth that matches with the Social Security Administration’s records.
- Ensure there are 7 days between payment week ending dates.
- Don’t submit claims until after the week end date on the claim.
- Report vacation pay, holiday pay, earnings, etc. for the week it was earned and not the week it was paid.
- Report any additional income that employees are receiving, except Social Security benefits, jury duty income, or pay for weekend military reserve duty.
- Identify any employees that you may need to file the partial claim.
- Gather all relevant information from the employee to file the partial claim, as well as the necessary employer information.
- Be sure to follow the correct steps when logging into the Employer Portal.
Kentucky COVID-19 State Regulations
NEW: Liability Protections Enacted
Who: Businesses that are considered “essential service providers,” like manufacturers of hygiene and PPE products, health care organizations, schools, child care providers, government agencies, and funeral homes.
When: Effective April 11, 2021. Retroactive to March 6, 2020 and until the emergency declaration ends, lapses, or is revoked.
What: SB provides essential businesses and individuals with property damage and personal liability protections from COVID-19-related claims, as long as they provided “good faith effort” to adhere to government regulations and didn’t act out of “gross negligence, wanton, willful, malicious, or intentional misconduct.” Businesses that don’t follow executive orders or other government guidance during the emergency won’t be covered by the law.
SB 5 doesn’t protect employers from personal injury claims, nor does it limit any enforcement actions by the Kentucky Occupational Safety and Health Administration.
What Should You Do?
- Review your current policies and procedures and ensure they meet the latest government guidance and seek legal counsel as necessary.
Update 4/23/21: Unemployment
Update 4/23/21: Starting May 9, 2021, anyone seeking unemployment insurance benefits will be required to make and report at least 1 job contact every week in order to qualify for their bi-weekly benefits. Applicants must report the following information about where they’ve been applying for full-time work: company name, position title, name and title of company contact, date contact with the business was made, and method of contact. Be sure to consult the Kentucky Unemployment Insurance webpage and the Claimant Guide: Your Rights & Responsibility When Claiming Unemployment Insurance Benefits.
On January 12, 2021, Governor Andy Beshear issued Executive Order 2021-025 to create the Unemployment One-Time Relief Payment Program.
Claimants are broken down into two major categories:
- Claimants under any Office of Unemployment Insurance (OUI) programs who would have otherwise qualified for a 2020 FEMA Lost Wages Assistance, but their weekly benefit was below $100, and who had an approved claim in November and December 2020 but their weekly benefit was below $176.
- Claimants under any OUI program between March 4 – October 31, 2020, with a verified identity and no fraud, but whose claims weren’t decided on and paid.
Claimants who fall within the first category will receive $400, while claimants in the second category will receive $1,000.
Executive Order 2021-025 (January 12, 2021)
UPDATE 2/26/21: Face Covering Mandate
Update 2/26/21: Executive Order 2021-134 was issued to extend the face covering mandate for another 30 days, starting February 28, 2021.
Update 1/5/21: Executive Order 2020-1056 was issued to extend the face covering mandate for another 30 days, starting January 1, 2021.
Update 12/3/20: Executive Order 2020-996 was issued on December 3, 2020 to extend the face covering mandate for another 30 days effective immediately. Everyone must wear a face covering when entering or waiting to enter any retail space, while waiting for or riding public transportation or ride-sharing service, outdoor spaces where physical distancing requirements can’t be met. Exemptions can be found on page 3 of the Order.
Update 10/12/2020: Executive Order 2020-856 issued on October 6, 2020, to extend the face mask requirement for 30 days.
Update 9/8/20: Executive Order 2020-750 was issued to extend the face mask mandate for another 30 days.
Beginning July 10, 2020, all residents must wear a face covering whenever social distancing requirements can’t be met, regardless of whether inside and outside. Page 5 of Executive Order 2020-586 lists those people who are exempt from the requirement. On August 6, 2020, Governor Beshear announced that the face mask mandate will last another 30 days.
Emergency Bill with Business Provisions
Who: Kentucky businesses and employees
When: March 30, 2020
What: SB 150 provides the following support to businesses during the COVID-19 pandemic:
Grants an additional 30 days to pay fees or follow normal requirements for licenses that expire before the state of emergency ends. Additionally, any licensing entities may waive any administrative or licensing fees during this time.
Unemployment insurance: The time period before unemployment benefits start has been waived and the base period has expanded to include additional employees who otherwise might not have qualified, like the self-insured and self-employed. SB 150 specifically states that it applies to employees whose hours have been reduced by “more than 10% and less than 60%.”
Telehealth: Healthcare providers may provide telehealth services provided unless specifically prohibited by federal or state law or state medical governing bodies.
- Review your current unemployment practices and update them according to the new requirements.
- As you make employment decisions, be sure to provide the proper support and options to your employees.
- Review any upcoming or past licenses and grants and determine if the administering agency or entity has provided any leniency during the COVID-19 pandemic.
- Be prepared to pay fees, file paperwork, or any other necessary requirements once the state of emergency lifts and regular operations resume.
All Non-Life Sustaining In-Person Retail Suspended
Who: Kentucky employers and employees
When: March 23, 2020 until the state of emergency ends or the order is ended by law
What: Governor Andy Beshear issued an Executive Order that all “in-person retail businesses that aren’t life-sustaining” must be closed.
Certain life-sustaining businesses can remain open but must abide by all government hygiene and health guidelines. These businesses include:
- Grocery stores and liquor stores;
- Automotive parts, repairs, and tire stores, as well as vehicle rental stores;
- Gas stations and convenience stores;
- Banks and financial service institutions;
- Hardware stores;
- Supply stores for buildings, gardens, and supply dealers;
- Warehouse clubs and supercenters;
- Pet and pet supply stores.
Although the Executive Order does not list gun stores as a life-sustaining business, it makes clear that the state will not interfere with the legal sale of firearms during this time.
Businesses that must close:
- Automobile and other vehicle dealers (dealers can continue providing parts, repairs, and service as noted above, but their showrooms must close);
- Department, cosmetics, beauty supply, perfume, clothing, shoes, jewelry, luggage and other leather goods stores, used merchandise stores;
- Optical goods stores;
- Other health and personal health care stores;
- Sporting goods stores;
- Music and musical instruments;
- Book stores;
- Electronics and appliance stores;
- Office supplies, stationery and gift stores.
However, businesses that are deemed non-life sustaining can receive online and telephone orders so long as they can arrange local delivery or curbside pickup.
Determine whether your business is considered essential. Assess your current workforce for who may be able to work remotely or is essential to be onsite.
When you’ve developed a plan to respond to the new regulations, consult with your legal counsel to ensure it’s compliant with the state rules. If you’re considering layoffs or furloughs, bear in mind the WARN Act.
Build a communication strategy to implement these changes in your workforce.
Provide support to your employees during this time and make yourself available to answer their questions and concerns.
Louisiana COVID-19 State Regulations
Updated 3/3/21: Face Covering Mandate
Update 3/3/21: Proclamation Number 29 JBE 2021 was issued and effective on March 3, 2021 to March 31, 2021, mandating all state residents wear a face covering at indoor and outdoor public spaces and any commercial businesses that are open to the public. The state is moving to Phase III of Resilient Louisiana.
Proclamation Number 89 JBE 2020 was issued and effective on July 13, 2020, mandating all state residents ages 8 years or older to wear a face covering in public spaces, regardless of whether they’re indoors or outdoors. Exemptions from this mandate can be found on page 3 of the Proclamation.
Businesses must require all people who enter their facilities to wear a face covering, unless the business is located in a parish that has exempted itself from the Proclamation or if the individual is exempt from the mandate.
The Order is effective to July 24, 2020 and could be extended.
Liability Protections Legislation to Help Businesses
Governor John Bel Edwards signed House Bill 826 into law, providing businesses with liability protections from customers and employees who file claims related to COVID-19 exposure. The bill is retroactive to March 11, 2020, the date Louisiana declared a state of emergency.
The new law provides that:
- Businesses aren’t liable for injuries or deaths related to actual or possible exposure of COVID-19, unless the business failed to substantially comply with federal, state, or local COVID-19-related requirements and the injury or death was a result of the business’s “gross negligence…or reckless misconduct.”
- Event planners aren’t liable for injury or death related to actual or possible exposure of COVID-19 when hosting or organizing and event, such as an exhibition or sporting event, unless a result of “gross negligence…or reckless misconduct.”
- Employees who contract COVID-19 in the workplace have no tort remedy unless the exposure was intentional.
- Businesses that manufacture, distribute, or are involved in the business of Personal Protective Equipment in response to COVID-19 aren’t liable for injury or death caused by COVID-19, unless a result of “gross negligence…or reckless misconduct.”
Although the new law provides businesses with protection, it is still important to ensure that all Louisiana organizations are upholding federal, state, and local COVID-19-related requirements.
Mississippi COVID-19 State Regulations
NEW 3/3/21: Face Covering Mandate Lifted
Governor Tate Reeve issued Executive Order 1549 to lift the state’s face covering mandate effective on March 3, 2021 and lasting until March 31, 2021. It repeals Executive Orders 1535 and 1536 and respective amendments.
Executive Order 1549 continues to encourage the use of face coverings and health and safety measures when people are in public spaces and social distancing can’t be maintained. It also gives county and local authorities the ability to adopt and implement rules and regulations that are stricter than the state.
What Should Employers Do?
- Conduct a hazards assessment program to evaluate the risk of your employees of exposure.
- Determine if you will require masks, occupancy restrictions or other measures.
- Develop and executive a communications plan for your employees and customers to set expectations with everyone.
- Evaluate your COVID-19 or pandemic response program and employee training based on this new guidance.
- Consult with your legal counsel and review your plan with them.
Legislation Provides Liability Protection to Businesses
Effective July 8, 2020 retroactively effective back to March 14, 2020
What: Legislation SB 3049 was signed into law by Governor Tate Reeve to provide civil lawsuit protections for COVID-19-related activities. People and organizations aren’t liable for injuries or death resulting from actual or possible exposure to COVID-19 as long as the person or organization can show a good faith effort to adhere to public health guidelines and didn’t willfully or intentionally violate requirements.
Under this new law, people are defined as individuals, for-profit and non-profit organizations, associations, charitable organizations, religious entities, the state and political subdivisions, and health care organizations and professionals.
Health care professionals and organizations are also extended immunity in instances where they have provided from the start date of the declaration of emergency and up to one year following the emergency. Health care activities that are covered by the law include:
- Services for screening, diagnosing, assessing, or treating people retroactively;
- Delaying or canceling elective or unurgent services;
- Diagnosing or treating people or using equipment or supplies that fall outside the normal scope of the professional’s license or practice;
- Off label use of prescriptions that are related to the COVID-19 emergency;
- Testing performed outside of a health care facility; and
- Acts that are a result of the lack of staffing, facilities, equipment, supplies, or other resources.
The law, under section 5, also provides immunity to businesses that manufactures, sells, distributes, labels, donates, etc. products that are part of the pandemic response. These products could be anything from PPE, medical devices, or supplies and also includes the off-label use of medications and the use of diagnosis tests that are approved by or submitted to the FDA. It also covers people who supply PPE and sanitizing products to outside of their regular course of business.
North Carolina HR and Workplace Regulations
Orange County Expands Non-Discrimination Ordinance
Who: Orange County, North Carolina employers
When: Effective immediately
What: State HB 142 expired in December 2020, which means local North Carolina governments must pass or reinstate their own ordinances if they want to keep the anti-discrimination law in effect. On January 19, 2021, Orange County expanded its definition of protected class to include age (40 years of age or older), race, ethnicity, color, national origin, religion, creed, sex, sexual orientation, gender, gender identity, gender expression, marital status, familial status, source of income, disability, political affiliation, veteran status, and disabled veteran status.
The ordinance does not explicitly prohibit discriminatory conduct by employers. It prohibits Orange County from entering into a contract with any business that has discriminated against any protected class. Discriminatory practices encompass the solicitation, selection, hiring, or treatment of vendors and suppliers. The new ordinance also prohibits an entity from denying public accommodations to any individual on the basis of a protected status.
- Update your nondiscrimination and retaliation policy to be in compliance with the law.
North Carolina COVID-19 State Regulations
Business Operations Restricted
Who: North Carolina employers and employees
When: March 27, 2020
What: Governor Roy Cooper issued an Executive Order 121 with key actions to combat the COVID-19 outbreak:
- Stay at home or place of residence order.
- All COVID-19 Essential Businesses and Operations are directed, to the maximum extent possible, to direct employees to work from home or telework.
- Essential Retail Businesses may continue to operate.
- Mass gatherings of more than 10 people in a single room or single space are prohibited and certain businesses should stop operations
- Schools are closed through May 15, 2020.
The executive order references “Essential Businesses” as those defined by the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency:
- Health care and public health;
- Law enforcement, public safety, emergency responders;
- Food and agriculture;
- Water and wastewater;
- Transportation and logistics, including automotive repair and automotive maintenance facilities;
- Public works;
- Other community-based government operations and essential functions;
- Critical manufacturing like pharmaceuticals, medical supply chains, energy, communications, food and agriculture, chemical manufacturing;
- Hazardous materials;
- Financial Services;
- Chemical; and
- Defense industries.
“Essential Retail Businesses” are electronic retailers that sell or service cell phones, computers, tablets, and other communications technology; lawn and garden equipment retailers; book stores that sell educational material; beer, wine, and liquor stores’ retail functions of gas stations and convenience stores; retail located within healthcare facilities; and pet and feed stores.
To the extent possible, all COVID-19 Essential Businesses and Operations (including Essential Retail Business) shall maintain the Social Distancing Requirements, which is to maintain 6 feet distancing from other individuals, washing hands using soap and water for at least 20 seconds, regularly cleaning frequently touched surfaces, and facilitating online or remote access by customers if possible.
The limit on mass gatherings doesn’t apply to normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers. It also does not include any COVID-19 Essential Business or Operation as defined in the Executive Order.
Businesses that are not “Essential Businesses and Operations” are required to cease all activities and reduce to Minimum Basic Operations. Minimum Basic Operations include the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or related functions. Note that the businesses that were ordered closed by Executive Orders 118 and 120, the latter noted below, shall remain closed.
In Executive Order 120, Governor Roy Cooper ordered entertainment facilities without any retail or food services, as well as personal care businesses, to close on March 25, 2020. Examples of these entertainment facilities include bingo parlors, bowling alleys, indoor exercise facilitates, health clubs, pools, performance venues, movie theaters, skating rinks, spas, and gaming facilities. Examples of personal care businesses include barber shops, beauty salons, hair salons, nail salons, massage parlors, and tattoo parlors.
Review your current telework and leave policies and procedures to help accommodate employees’ childcare needs.
Determine if your business is impacted by these restrictions and if you need to plan a response to new regulations, consult with your legal counsel to ensure it’s compliant with the state rules.
Who: North Carolina employers and employees
When: March 18, 2020 until the State of Emergency ends
What: Governor Roy Cooper issued an Executive Order with two main actions: restrict the operations of restaurants and bars and expand the availability of unemployment benefits for workers affected by COVID-19. The latter is what will be discussed here.
Under the Order, the state Department of Commerce has the authority to ensure that workers who, as a result of COVID-19, are unemployed, have reduced hours, or are prevented from working due to a medical condition caused by COVID-19 are eligible for maximum unemployment benefits permitted by federal law.
Employers’ accounts won’t be charged for benefits paid to COVID-19 related claims.
Using quarantine and isolation orders as control methods, the Department can interpret flexibly or waive, as appropriate, the following:
- The 1-week waiting period for benefits;
- The ability to work and available to work requirements;
- The actively seeking work requirements; and
- The “lack of work” requirement
The Order delays all in-person contact usually required for unemployment benefits. It also allows applications and weekly certifications to be filed remotely, via phone or internet.
Consult with your legal counsel as you make decisions regarding employment.
As you make employment changes, provide support to your employees during this time and make yourself available to answer their questions and concerns.
Oklahoma COVID-19 State Regulations
South Carolina COVID-19 State Regulations
Unemployment Benefits Expanded 6 Weeks
In July, Governor Henry McMaster issued Executive Order 20-25 to add six weeks to the Extended Benefits program for unemployment. This additional time is on top of the 10 weeks of extended benefits announced earlier in the month.
Extended Benefits are available only to those individuals that have used their 20 weeks of regular unemployment benefits and 13 weeks of Pandemic Emergency Unemployment Compensation program benefits. The Weekly Benefit Amount (WBA) is the same as the person received for standard unemployment insurance.
Additionally, Executive Order 2020-22 was issued to allow furloughed employees to still qualify for unemployment benefits if they receive “COVID-19 Support Payments” from their employers.
South Carolina Guidelines for Indoor Activities (October 2020)
Accelerate SC Final Report and Recommendation (June 2020)
Tennessee COVID-19 State Regulations
Liability Law Passes
Who: Tennessee businesses, healthcare providers, schools, nonprofits, and other individuals and entities
When: August 17, 2020. The law ends July 1, 2022, and applies to COVID-19 claims, except those filed before August 3, 2020.
Governor Bill Lee signed the COVID-19 Liability Shield Law to expand the protection of businesses from COVID-19-related lawsuits brought by employees, customers, and the public. Individuals who file a claim against a business must provide clear and convincing evidence that the organization exhibited gross negligence or willful misconduct that resulted in death, damage, injury, or loss.
- File a verified complaint against the organization that details the negligence or misconduct
- Provide a certificate of good faith that the individual has consulted with a physician licensed in Tennessee or a bordering state,
- A physician’s written statement of competency to state that the damage caused was a result of the business.
Texas COVID-19 State Regulations
Virginia HR and Workplace Compliance Regulations
NEW: Virginia Minimum Wage Increases to $9.50/Hour
Who: Virginia employers
When: Effective May 1, 2021
What: On April 22, 2020, the Virginia General Assembly passed a law that increases the state’s minimum wage to $12.00 per hour by 2023. As of May 1, the minimum wage is $9.50 per hour. For tipped employees, tips plus wages must now equal at least $9.50 per hour. Employers must pay trainees the greater of the federal minimum wage or 75% of the Virginia minimum wage and can pay the trainee wage only for a maximum of 90 days.
Some employees that were previously exempt from minimum wage laws are now eligible:
- Domestic servants, such as maids, companions, and cooks;
- Home care providers; and
- Babysitters who work more than 10 hours per week.
There are other classes of workers who remain exempt. Additional minimum wage increases are scheduled for January 1, 2022 (to $11.00 per hour) and January 1, 2023 (to $12.00 per hour).
Employers are not required to post a notice of minimum wage, but there is a notice available if desired.
- Review employee classification policies and procedures to ensure compliance with the new law.
- Post the Minimum Wage Poster Notice if desired.
Virginia COVID-19 State Regulations
COVID-19 Workplace Safety Standard Becomes Permanent
Who: Virginia employers
When: Effective Immediately
Virginia’s Permanent COVID-19 Workplace Standard, took effect on January 27, 2021, following the expiration of the temporary standard on January 26, 2021.
The standards are largely the same, but the Permanent Standard was updated to include:
- Face coverings should consist of 2 or more layers, including neck gaiters, and shouldn’t have exhalation valves or vents. Face shields aren’t a substitute for a face covering, surgical mask, or respirator. Employees with health conditions that prevent them from wearing a face covering, may wear a hooded shield or a shield that covers the chin and wraps around the face. Non-employees have been added to the list of people to who employers must provide masks or face coverings.
- Occupational exposure is now defined as 2 days prior to symptoms appearing or a positive test and 10 days after.
- Reporting requirements to the Virginia Department of Health are now necessary for 2 cases within a 14-day period (the ETS required this for every case) and any subsequent infections. Once the outbreak is closed by the state health department, you will revert back to only reporting when there are 2 cases in 14 days.
- Returning to work strategy is now based on meeting 3 criteria: 1) the employee’s temperature is below 100.0°F for a minimum of 24 hours, without fever-reducing medication, 2) improve respiratory symptoms (e.g., cough or shortness of breath), 3) 10 days have gone by since symptoms first appeared. It should be noted that in severe cases of the illness or immuno-compromised employees, 20 days after the onset of symptoms may be necessary.
- Employees in vehicles need to wear face coverings, open windows, and use procedures that maximize separation in the vehicle (e.g., occupancy limits or alternating seats).
- ANSI standards for ventilation requirements were removed but language was added including “increasing airflow within the parameters” of the workplace’s system and using natural ventilation. Additional ventilation standards were added for hazards or job tasks that are considered “very high,” “high,” or “medium,” risk including inspecting filter housing to minimize bypass, increasing air filtration (as long as it doesn’t surpass the system’s capabilities), and ensure restroom exhaust fans are on during occupancy.
- Enforcement: Action won’t be taken if an employer fails to provide PPE when PPE isn’t readily available. OSHA will consult the Virginia Department of Health in cases where the availability of PPE is in question.
A new deadline for infectious disease and preparedness response plans and training requirements has been set for March 26, 2021.
Failure to comply with the Permanent Standard could see fines of up to $12, 726 for serious violations and up to $127,254 for willful violations.
After the Governor’s State of Emergency and the Declaration of Public Emergency has expired, a meeting will be held within 14 days to determine if the need for this standard is still necessary.
- For KPA customers who have the COVID-19 Safety Program, your consultant is working on updating your program and will be sending your updated program for review and approval. Please respond quickly so we can get your new program published.
- Consult with your legal counsel to determine if any changes need to be made to your workplace policies and procedures.
- If you haven’t already, be sure you’ve conducted an assessment of exposure risk levels for every position.
- Review your infectious disease and preparedness response plans by March 26, 2021, to ensure their compliance with the permanent standard.
- Review your training courses and ensure your employees have been trained (if they haven’t been already) by March 26, 2021.
Emergency Temporary Standard Information:
The Virginia legislature adopted statewide COVID-19 workplace safety standards. The final language states that all businesses must ensure the following:
- Workers practice social distancing.
- Workers wear face coverings.
- Employers provide access to hand washing or hand sanitizer.
- High-contact surfaces are sanitized frequently.
- All employees are notified within 24 hours if a co-worker tests positive for COVID-19.
- Any employee who is “known or suspected” to be positive for COVID-19 cannot return to work for 10 days, or until that person receives 2 consecutive negative test results.
- Employers complete a hazard assessment by job category for potential exposure to COVID-19.
- Governor Northam also included in his announcement that there will be mandatory “infectious disease preparedness and response plans, record keeping, training, and hazard communications.”
The Virginia Occupational Safety and Health Program is enforcing the standards. Penalties could range from $13,000 to $130,000.
The emergency standards will expire in 6 months, or when Virginia’s State of Emergency ends, or if a permanent standard is implemented.
But there are other certain effective dates you need to know. You have:
- 60 days from July 27, 2020, to respond with a written infectious disease preparedness and response plan, if required for your facility (September 25, 2020).
- 30 days from July 27, 2020, to make sure all of your employees have been trained and you have written certification records for those employees (August 26, 2020).
- To evaluate your workplace and conduct a hazard assessment by job description for the likelihood of contact with COVID-19 (due upon release of the final rule on July 27, 2020).
- Conduct a Hazards Assessment. Review and audit your current practices, identify areas for improvement, and additional protocols you may need to implement.
- Review the final language with your legal counsel to ensure you have a clear understanding of what is required of employers.
- Work and communicate with your employees about the importance of a safe work environment. Train them on the proper procedures you’ve put in place and any required training courses.
Forward Virginia Reopening Plan
Beginning May 15, 2020, Virginia will start Phase I of its 3-phased reopening plan, Forward Virginia. Each phase may last from 2 to 4 weeks. As part of the reopening plan, the current Stay-At-Home Order will be replaced with a Safer At Home Order.
Update 6/24/20: Governor Northam announced that Phase III will begin on July 1, 2020 and released Phase III guidelines for all business sectors to adhere to. On June 18, the Governor released an outline of what Phase III will look like in a press release.
Update 6/4/20: Virginia will begin Phase II on June 5, 2020, allowing businesses like fitness centers, farmers markets, retail, and more to reopen under industry-specific requirements for social distancing, hygiene, and sanitation. See Executive Order 3rd Amended No. 61 and Safer At Home: Phase Two Guidelines For All Business Sectors. See Executive Order 2nd Amended No. 61 for the expansion of activities at public beaches and racetracks.
Update 5/29/20: Executive Order No. 63 requires face masks for all employees of essential retail business employees. State residents are also required to wear face masks in public.
Update 5/20/20: The Forward Virginia Reopening Plan was updated to include additional information on what Phase I and Phase II look like for businesses.
Update 5/18/20: Under Executive Order EO-62, Northern Virginia counties won’t begin Phase I until May 28, 2020. Be sure to check your local orders to ensure your business is in compliance with all regulations.
Phase I will continue to require social distancing, teleworking, and limited gatherings of less than 10 people, and provide the recommendation that everyone in public wear face coverings. For businesses, Phase I will include developing and enforcing policies to keep employees and customers separate, allowing for handwashing breaks, and limited capacity for gyms, restaurants, and retail stores.
Business and Gathering Restrictions
Who: Virginia employers, employees, and residents
When: March 24, 2020 through April 23, 2020 (Updated to May 8, 2020, through an extension of Executive Order No. 53)
Governor Ralph Northam issued an Executive Order prohibiting gatherings of 10 or more individuals, closing K–12 schools for the remainder of the 2019–2020 school year, closing recreational and entertainment businesses, limiting patronage at certain retail establishments, and closing dining areas in food and beverage establishments. Delivery and take-out food and beverages from these restaurants are still available.
Childcare facilities may remain open within previously stated guidelines. Families that can keep their children at home are asked to do so.
Essential retail businesses may remain open during normal business hours. Those businesses are:
- Grocery stores, pharmacies, and other retailers that sell food and beverage products or pharmacy products;
- Medical, laboratory, and vision supply retailers;
- Electronic retailers that sell or service cell phones, computers, and other communications technology;
- Automotive parts, accessories, and tire retailers, automotive repair facilities;
- Home improvement, hardware, building material, and building supply retailers;
- Lawn and garden equipment retailers;
- Beer, wine, and liquor stores;
- Gas stations and convenience stores;
- Retail located within healthcare facilities;
- Banks and other financial institutions with retail functions;
- Pet and feed stores;
- Printing and office supply stores; and
- Laundromats and dry cleaners.
Brick-and-mortar businesses not listed above may remain open if they are able to limit in-person patrons to no more than 10 at a time and maintain proper social distancing of six feet. If you cannot meet those requirements, you must close the business. If your business provides professional services, arrange for employees to work from home if at all possible. If telework is not possible, these businesses should maintain social distancing recommendations and enhanced sanitizing practices.
Other services that are considered essential and may remain open are:
- Health care and medical services;
- Essential services for low-income residents;
- Media operations;
- Law enforcement; and
- Government operations.
- Determine if your business is defined as essential and may remain open during normal business hours.
- Arrange for employees to work from home whenever possible. If telework is not possible, create policies to the ensure safety of all employees reporting to work, including but not limited to social distancing recommendations, enhanced sanitization practices, and limiting physical touch with customers and other employees.
- If your business is not essential, and it is not a recreational or entertainment business, develop a strategy for adhering to the requirement for no more than 10 patrons at a time in your establishment, while adhering to social distancing recommendations.
- When you’ve developed a plan to respond to the new regulations, consult with your legal counsel to ensure it’s compliant with the state rules.
- Build a communication strategy to implement these changes in your workforce.
- Provide support to your employees during this time and make yourself available to answer their questions and concerns.
- There may be potential discrepancies between state and local orders. If you believe there may be a discrepancy affecting you or your business, you should contact your local government and/or competent local counsel for further advice.
West Virginia HR and Workplace Compliance Regulations
NEW: West Virginia Enacts Worker Classification Legislation
Who: West Virginia employers
When: Effective June 9, 2021
What: West Virginia’s Governor Justice signed SB 272 into law—the West Virginia Employment Law Workers Classification Act. The purpose of the law is to provide clear guidelines as to which workers should be classified as employees and which should be classified as independent contractors. It specifically excludes on-demand drivers, who are classified as independent contractors. The Act applies only to certain provisions of the West Virginia Code: workers’ compensation, unemployment compensation benefits, Human Rights Act rights, and wage payment and collection provision.
The law specifies that a person must meet several criteria in order to qualify as an independent contractor. First, there must be a written contract between the principal of the hiring business and the contractor that states the principal’s intent to engage the services of the person as an independent contractor and contains an acknowledgment by the contractor that they:
- Are providing services as an independent contractor;
- Will not be treated as an employee;
- Will not be eligible for workers’ compensation or unemployment benefits;
- Must pay all applicable federal and state income taxes;
- Will not be subject to tax withholdings by the principal; and
- Are responsible for the majority of the supplies and other variable expenses incurred in connection with the contracted services except under certain circumstances.
Further, the worker must file or be contractually obligated to file an income tax return for fees earned or provide the services through a business entity that directly controls the how the work is to be accomplished.
Lastly, three or more of the following nine criteria must apply. The worker:
- Has control over the amount of time personally spent providing services;
- Has control over where the services are performed;
- Is not required to work exclusively for one principal except in certain limited circumstances;
- Is free to exercise independent initiative in soliciting others to purchase their services;
- Is free to hire employees or to contract with assistants, helpers, or substitutes to perform all or some of the work;
- Cannot be required to perform additional services without a new or modified contract;
- Obtains a license or other permission from the principal to utilize any workspace of the principal in order to perform the work for which the worker was engaged;
- Has not been reclassified by the IRS as an employee or; or
- Is responsible for maintaining and bearing the costs of any required business licenses, insurance, certifications, or permits required to perform the services.
- Review the criteria to determine if your organization is complying with the new worker classification law.
West Virginia COVID-19 State Regulations
NEW 11/14/20: Face Covering Mandate
Effective November 14, 2020, everyone over the age of 9 must wear a face covering in confined indoor spaces with people outside their household, regardless of social distance.
Businesses must ensure that any customers or other members of the public that enter their space, comply with the face covering mandate. Adequate signage should be displayed to notify the public of this order.
Exemptions can be found on page 3 of the Order.
Executive Order No. 77-20 (November 14, 2020)