inspector finds that an employer has a deficient policy in place, but that policy is derived from a documented CDC recommendation, then the ensuing enforcement penalty may be reduced. It appears that this exception does not offer employers any real protection from citation for potential violations but may reduce the enforcement penalty associated with such citations. Regardless, all CDC recommendations relied on by employers when crafting workplace policies to comply with the emergency standards should be documented by the employer, adding yet another documentary requirement to the administrative burden placed on healthcare providers. 23 Until additional guidance is provided specific to healthcare providers, providers must continue to ensure that all steps intended to comply with the DOLI standards are documented to the extent possible or show that they have complied with CDC recommendations of equal or greater protection. In the ever-changing healthcare landscape during this worldwide pandemic, any evidence of intent and good faith actions taken to comply with guidance is critical to protecting provider employers. Conclusion While the Virginia DOLI emergency standards were borne out of a legitimate concern that employers take care of their employees, the emergency nature and quick implementation of the standards have resulted in blind spots that have hindered healthcare provider employers by increasing the regulatory burden and paperwork requirements. In a pandemic, the focus of these providers should be taking all steps to ensure their employees and patients are safe and healthy, without the need to comply with lengthy assessments and detailed documentation measures that do not capture the reality of the healthcare setting in which risks are ever changing. Further discussion and review need to be undertaken in order to provide healthcare provider employees guidance on implementing these regulations to the extent necessary to protect their employees, while recognizing that the “one size fits all” Virginia DOLI emergency standards are overly burdensome for these employers. William “Scott” Daisley is an associate at Mellette PC in Williamsburg. Daisley’s practice focuses on asset purchases, regulatory compliance, and corporate and licensing matters. While in law school, Daisley interned at the New Kent County Commonwealth’s Attorney’s Office for two summers and worked in both the Lewis B. Puller Jr. Veteran’s Benefits and Elder Law Clinics. In his spare time, he enjoys watching sports, home improvement projects, and spending time with his wife and son. www.vsb.org Elizabeth Dahl Coleman is an associate at Mellette PC in Williamsburg. Her practice focuses on assisting healthcare providers with a variety of transactional and regulatory matters, such as obtaining Certificates of Public Need, maintaining compliance with changing laws and regulations, and navigating investigations and enforcement actions. She also routinely provides advice to her healthcare clients regarding employment-related concerns. Endnotes 1 See §16VAC25-220, Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 , as Adopted by the Safety and Health Codes Board on July 15, 2020, available at https://www.doli.virginia.gov/wp-content/ uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf. 2 See, e.g., comments from the Medical Society of Virginia, available at https://townhall.virginia. gov/l/viewcomments.cfm?commentid=85449, the Virginia Hospital & Healthcare Association, available at https://townhall.virginia.gov/l/ viewcomments.cfm?commentid=86115, and HCA Virginia Health System, available at https://townhall.virginia.gov/l/viewcomments. cfm?commentid=86207. All three of these comments were submitted in connection with the recently proposed permanent standards. 3 Centers for Medicare and Medicaid Services, Patients Over Paperwork Fact Sheet, https:// www.cms.gov/About-CMS/Story-Page/ Patients-Over-Paperwork-fact-sheet.pdf, last updated Aug. 2019. 4 16 VAC 25-220-40.A.1. 5 Id . 6 16 VAC 25-220-50 through -80. 7 See generally, 16 VAC 25-200. 8 16 VAC 25-220-70.A. and 16 VAC 25-220-70.C.3. 9 16 VAC 25-220-80.A. 10 16 VAC 25-220-70.C.3.b. 11 16 VAC 25-220-30 ( see definition of “Very high” risk). 12 Id . ( see definition of “High” risk). 13 Id . ( see definition of “High” risk). 14 Id . ( see definition of “Medium” risk). 15 Id . ( see definition of “Medium” risk). 16 Id . ( see definition of “High” risk). 17 See Clinical Questions about COVID-19: Questions and Answers, Infection Control, Which procedures are considered aerosol generating procedures in healthcare settings?, available at https://www.cdc.gov/ coronavirus/2019-ncov/hcp/faq.html. 18 See 16 VAC 25-220-30 ( see definition of “Very high” risk). 19 See 16 VAC 25-220-50.C.2. and 16 VAC 25-220-60.C.2. 20 16 VAC 25-220-10.G.1. 21 Id . 22 Va. Code § 40.1-49.4.A.4.a. 23 16 VAC 25-220-70.C.8. THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 25