All Virginia employers subject to the jurisdiction of the Virginia Occupational Safety and Health ("VOSH") Program (i.e., practically all employers in Virginia) must comply with new workplace safety standards related to COVID-19. Known as the Emergency Temporary Standard
("Standard"), the new regulation requires employers to:
1. Conduct a Hazard Assessment
The hazard assessment evaluates job tasks based on their risk of exposure to COVID-19 based on a number of factors listed in the Standard. Similar tasks can be grouped together for classification purposes.
Employers then classify a given task based on its risk:
- Very High Risk - Tasks that require close contact with known/suspected to be infected cases of COVID-19 in order to perform medical, postmortem or laboratory procedures.
- High Risk - Tasks with a high risk of being inside of six feet with someone known/suspected to have COVID-19.
- Medium Risk - Tasks that require more than minimal contact inside of six feet with other employees, persons, or the general public who may be infected but are not known/suspected to have COVID-19.
- Lower Risk - Tasks not requiring contact inside of six feet and involve minimal contact with others. Most office jobs will be lower risk, but you must do a proper assessment.
If the employer identifies at least "medium" risks of exposure, it must also certify in writing that it performed the Workplace Hazard Assessment.
2. Develop Workplace Policies and Standards Regarding COVID-19
The Standard requires employers to develop policies and procedures, in some cases in writing, for a variety of COVID-19 related situations. We recommend that all employers, regardless of risk, memorialize their policies in writing.
Among the policies required include:
3. Notification Requirements
- How to self-monitor for symptoms of COVID-19;
- Reporting when an employee is experiencing symptoms of COVID-19;
- Removing from the workplace employees known/suspected to have COVID-19;
- Dealing with subcontractors that provide contract/temporary labor regarding COVID-19;
- Return-to-work protocols for known/suspected cases of COVID-19;
- Social distancing measures in the workplace, including:
- Limiting density by limiting non-employee access;
- Enforcing occupancy limits;
- Close/control common areas;
- Use of PPE in shared work vehicles;
- Handwashing and sanitizing facilities throughout the facility.
- Sanitation and disinfection standards.
Employers must develop a system to receive positive reports of COVID-19 tests by "employees, subcontractors, contract employees and temporary employees present in the workplace in the 14 days prior to the positive test." Within 24 hours of discovery of a positive COVID-19 case, employers must notify:
4. Infectious Disease and Preparedness Response Plan
- Their own employees who may have been exposed;
- Other employers whose employees were present at the worksite during the same time period (i.e., your client and any other subcontractors);
- The building facility owner;
- The Virginia Department of Health; and
- The Virginia Department of Labor and Industry ("DOLI"), but only if three or more employees present at the place of employment test positive during a 14-day time period.
- If the employer has 11+ employees in the "medium" risk category, it must develop a written Infectious Disease Preparedness and Response Plan, which, among other items, sets forth a written plan for personal hygiene of employees, cleaning and disinfecting the facility, dealing with visitors, and addressing infected employees
Employers with any job tasks classified as "medium" risk must conduct training on:
- Requirements of the Standard;
- Mandatory and non-mandatory CDC guidelines or Virginia guidance documents the employer is complying with;
- Characteristics and methods of transmission of COVID-19;
- Signs and symptoms of COVID-19;
- Risk factors of severe COVID-19 illness associated with underlying health conditions;
- Awareness of pre-symptomatic and asymptomatic persons to transmit COVID-19;
- Safe and healthy work practices, including social distancing, disinfection processes and frequency, ventilation, non-contact methods of greeting, etc.;
- PPE - when/what required, how to don/doff, limits of PPE, care for PPE, signs of heat-related illness;
- The Standard's anti-discrimination provisions (see below); and
- The Employer's Infectious Disease Preparedness and Response Plan, where applicable.
At the end of the training, employees should be able to recognize the hazards of COVID-19, signs and symptoms, and the procedures to be followed to minimize the risk of exposure. Employers will need a written certification verifying compliance.
Employers can find samples of the Workplace Hazard Assessment Certification, Training materials and Certification form, and a template for an Infectious Disease and Preparedness Response Plan on the Virginia Department of Labor and Industry's website, available HERE
In addition to the requirements above, the Standard prohibits retaliation against employees who exercise their rights under the Standard, or who raise a "reasonable concern about infection control" related to the virus or COVID-19.
7. Enforcement and Penalties
VOSH has the right to conduct inspections for compliance with the Standard, and it can impose penalties for certain violations.
Conclusion and Takeaways
The Standard remains in effect for six months from July 27, 2020, unless the State of Emergency expires/is lifted or it is superseded by a permanent standard. Because the Standard is currently in effect, Virginia employers need to take steps to come into compliance immediately. Employers with questions about these regulations or the impact on their business should contact counsel.