Requirements for employers and what employers should do now
On July 15, 2020, Virginia became the first state in the country to adopt an Emergency Standard for COVID-Related Workplace Safety, which applies to all employers in the Commonwealth. In essence, the regulations require employers to analyze their worksites and the tasks that each employee performs, in order to effectively categorize the COVID-related risks inherent in those workplaces and/or tasks.
Once the categorization of risk is made, employers will then be required to abide by various requirements for each level of risk. The Emergency Standard is in effect, however the requirements regarding training and implementation of infectious disease plans (for employers in the “very high”, “high” and “medium” risk categories) will not become effective for 30-60 days. Additional guidance will be forthcoming from DOLI.
Virginia employers will need to comply with the Emergency Standard or potentially face DOLI enforcement actions.
This article summarizes the following:
- Categorization of Risks
- Definition of Risk Categories
- Requirements for All Employers, Regardless of Risk Category
- Additional Requirements for Employers with Higher Risk Categories
- What Should Employers Do Now?
Categorization of Risks
In the new standard, DOLI has asked that employers assess their risk level as “very high”, “high”, “medium” or “lower”. DOLI acknowledges that, within a workplace, there may be various risk categories based on the hazards and job tasks in place.
Analyzing these job risks will include looking at the following factors:
- Tasks being undertaken,
- The known or suspected presence of COVID-19 or of a person with COVID-19,
- The potential exposure to the airborne transmission (including droplets or airborne droplet nuclei) of COVID-19,
- The number of employees in relation to the work area,
- The working distance between employees,
- The duration and frequency of employee exposure through close contact with employees and others, and
- Whether employees are regularly engaged in sharing transportation.
The Exposure Risk Level(s) of a workplace will dictate what steps an employer must take to protect its employees.
Definition of Risk Categories
The following are definitions provided by DOLI for each category:
“Very high” exposure risk hazards or job tasks are those in places of employment with high potential for employee exposure to known or suspected sources of the COVID virus (e.g., laboratory samples) or persons known or suspected to be infected with the COVID virus, including, but not limited to, during specific medical, postmortem, or laboratory procedures:
- Aerosol-generating procedures (e.g., intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection) on a patient or person known or suspected to be infected with the COVID virus;
- Collecting or handling specimens from a patient or person known or suspected to be infected with the COVID virus (e.g., manipulating cultures from patients known or suspected to be infected with the COVID virus);
- Performing an autopsy that involves aerosol-generating procedures on the body of a person known or suspected to be infected with the COVID virus at the time of their death.
“High” exposure risk hazards or job tasks are those in places of employment with high potential for employee exposure inside six feet with known or suspected sources of COVID, or persons known or suspected to be infected with the COVID virus including, but not limited to:
- Healthcare (physical and mental health) delivery and support services provided to a patient known or suspected to be infected with the COVID virus, including field hospitals (e.g., doctors, nurses, cleaners, and other hospital staff who must enter patient rooms or areas);
- Healthcare (physical and mental) delivery, care, and support services, wellness services, non-medical support services, physical assistance, etc., provided to a patient, resident, or other person known or suspected to be infected with the COVID virus involving skilled nursing services, outpatient medical services, clinical services, drug treatment programs, medical outreach services, mental health services, home health care, nursing home care, assisted living care, memory care support and services, hospice care, rehabilitation services, primary and specialty medical care, dental care, testing services, blood donation services, contact tracer services, and chiropractic services;
- First responder services provided to a patient, resident, or other person known or suspected to be infected with the COVID virus;
- Medical transport services (loading, transporting, unloading, etc.) provided to patients known or suspected to be infected with the COVID virus; and
- Mortuary services involved in preparing (e.g., for burial or cremation) the bodies of persons who are known or suspected to be infected with the COVID virus at the time of their death.
“Medium” exposure risk hazards or job tasks are those in places of employment that require more than minimal occupational contact inside six feet with other employees, other persons, or the general public who may be infected with COVID, but who are not known or suspected to be infected with the COVID virus. “Medium” exposure risk hazards or job tasks may include, but are not limited to, operations and services in:
- Poultry, meat, and seafood processing; agricultural and hand labor; commercial transportation of passengers by air, land, and water; on campus educational settings in schools, colleges, and universities; daycare and afterschool settings; restaurants and bars; grocery stores, convenience stores, and food banks; drug stores and pharmacies; manufacturing settings; indoor and outdoor construction settings; correctional facilities, jails, detentions centers, and juvenile detention centers; work performed in customer premises, such as homes or businesses; retail stores; call centers; package processing settings; veterinary settings; personal care, personal grooming , salon, and spa settings; venues for sports, entertainment, movies, theaters, and other forms of mass gatherings; homeless shelters; fitness, gym, and exercise facilities; airports, and train and bus stations; etc.; and
- Situations not involving exposure to known or suspected sources of COVID: hospitals, other healthcare (physical and mental) delivery and support services in a non-hospital setting, wellness services, physical assistance, etc.; skilled nursing facilities; outpatient medical facilities; clinics, drug treatment programs, and medical outreach services; non-medical support services; mental health facilities; home health care, nursing homes, assisted living facilities, memory care facilities, and hospice care; rehabilitation centers, doctors’ offices, dentists’ offices, and chiropractors’ offices; first responders services provided by police, fire, paramedic and emergency medical services providers, medical transport; contact tracers, etc.
“Lower” exposure risk hazards or job tasks are those that do not require contact inside six feet with persons known to be, or suspected of being, or who may be infected with COVID. Employees in this category have minimal contact with other employees, other persons, or the general public, such as in an office building setting; or are able to achieve minimal contact through the implementation of safety controls, such as, but not limited to:
- Installation of floor to ceiling physical barriers constructed of impermeable material and not able to be unintentionally moved (e.g., such as clear plastic walls at convenience stores behind which only one employee is working at any one time);
- Staggered work shifts that allow employees to maintain physical distancing from other employees, other persons, and the general public;
- Delivering services remotely by phone, audio, video, mail, package delivery, curbside pickup or delivery, etc.; and
- Mandatory physical distancing of employees from other employees, other persons, and the general public.
- Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable safety control to achieve minimal occupational contact. However, when it is necessary for brief contact with others inside the 6 feet distance a face covering is required.
Requirements for All Employers, Regardless of Risk Category
In all circumstances, no matter the Exposure Risk Level, Virginia employers will have to:
- Assess the workplace for hazards and job tasks that potentially can expose employees to COVID-19. Employers shall classify each job task performed by employees into one of the Exposure Risk Levels;
- Inform employees of the methods of and encourage employees to self-monitor for signs and symptoms of COVID-19;
- Develop and implement policies and procedures for employees to report when they experience symptoms consistent with COVID-19, and no alternative diagnosis has been made (i.e. influenza). In such circumstances, the employer must designate the employee as "suspected to be infected with COVID virus”;
- Make sure that employees and others known or suspected to have COVID-19 are not allowed to work at a work site (including a customer site) until they are cleared to return to work or the job site in person. Telework is still permitted, however;
- Ensure that sick leave policies, including the Families First Coronavirus Response Act, are in place and that employees are aware of these policies;
- Work with subcontractors or temporary placement employers to ensure that any of their workers suspected or confirmed to have COVID-19 must leave work and must stay at home until they are cleared to return to work;
- To the extent permitted by law, including HIPAA, employers must establish a system to receive positive tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being known or suspected of having COVID-19) who worked at the place of employment within the 14 days prior to the positive test and notifying, within 24 hours of discovery of the positive test, its employees and others who were present on the worksite and the building/facility owner when the employer has a reasonable belief that such employees or others may have been exposed.
- Also within 24 hours, the employer must notify the Virginia Department of Health of a positive test; and; if three or more employees test positive within a 14-day period, the employer must notify the Virginia Department of Labor and Industry;
- Ensure that employees have access to their own COVID-19-related exposure and medical records in accordance with industry-specific standards;
- Develop and implement return to work policies and procedures for employees known or suspected to have COVID-19 using either a symptom-based or test-based strategy based on local healthcare and testing circumstances;
- Develop and implement return to work policies and procedures for employees known to be infected with COVID-19 and who are asymptomatic using either a symptom-based or test-based strategy based on local healthcare and testing circumstances. Employers may not require employees to pay for the cost of COVID-19 testing for return to work determinations.
- Ensure that employees observe social distancing while on the job and during paid breaks on the employer’s property, including policies and procedures that use verbal announcements, signage and visual cues to promote social distancing, and decrease worksite density (an employer’s compliance with occupancy limits in an executive order or public health emergency order will constitute compliance with these requirements);
- Ensure that access to common areas, break areas, or lunchrooms is closed or controlled;
- If two or more employees are in a vehicle for work purposes, or if employees cannot socially distance in the workplace, ensure that all respiratory and personal protective equipment (PPE) standards applicable to the industry are adhered to;
- Adhere to the Virginia Occupational Safety and Health standards for cleaning and disinfecting the workplace based on applicable industry standards.
Additional Requirements for Employers with Higher Risk Categories
In addition to the general requirements summarized above, employers with hazards or job tasks that are classified as “very high,” “high,” or “medium” may face additional requirements, including:
- Ensuring an appropriate ventilation and air-handing system (specifics depend on industry and risk level);
- Installing physical barriers like clear plastic and sneeze guards, where such barriers would mitigate the spread of COVID;
- Pre-screening or surveying employees for signs or symptoms of COVID before each work shift;
- Limiting non-employee access and/or restricting certain areas of the workplace;
- Offer enhanced medical monitoring of employees during COVID outbreaks;
- Provide employees with job-specific training on preventing the transmission of COVID;
- Providing and requiring face coverings where employees cannot feasibly practice physical distancing or for public-facing positions;
- Providing and requiring other PPE identified during the employer’s hazard assessment (such as respirators); and
- Creating a written infectious disease preparedness and response plan.
Infectious Disease and Preparedness Response Plan
Employers with hazards or tasks classified as “very high”, “high” or “medium” (only if it has 11 or more employees) must develop and implement a written response plan. The plan and training requirements (see below) apply only to those employees classified as “very high”, “high” or “medium”. The plan shall:
- Identify the name(s) and title(s) or those responsible for administering the plan.
- Allow employees to cooperate in the development and implementation of the plan.
- Consider and address the levels of risk associated with each work site, the hazards employees are exposed to and the job tasks performed at those sites.
- Consider contingency plans that may be needed in cases of outbreaks.
- Identify basic infection prevention measures to be used.
- Provide for prompt identification and isolation of COVID-positive employees, including procedures for employees to report when they have symptoms.
- Address the plan’s response with outside entities who need to know, including subcontractors, placement agencies and others with access to the worksite,
- If the employer intends to use its compliance with CDC or other health guidelines in lieu of a requirement in this standard, the plan should identify such guidelines.
- Ensure compliance with any relevant executive order or order of public health emergency related to COVID.
If an employer determines that some of its workforce faces “very high,” “high,” or “medium” exposure risk to COVID-19, the employer must be train employees on the requirements of the Virginia standard or the CDC and/or OSHA guidelines the employer is following, including;
- The employer’s infectious disease preparedness and response plan;
- Signs and symptoms of COVID-19;
- Risk factors of COVID-19 to individuals with health conditions;
- Transmission of the virus (including by pre-symptomatic and asymptomatic individuals);
- Safety and health work procedures (including the use of PPE); and
- The anti-discrimination provisions in the standard.
According to the most recent guidance, employers will have 30 days after the Virginia standard becomes effective to train employees under this section of the standard, with the exception of training on the plan, which must take place within 60 days following the effective date, thereby giving applicable employers more time to develop the plan. Employers must maintain certification records of employee trainings per this requirement. Employers with hazards or job tasks classified at “lower” risk must provide written information to employees on the potential hazards and symptoms of COVID-19 and measures to minimize exposure.
What Should Employers Do Now?
Employers in Virginia should begin preparing a plan to comply with these new workplace safety standards. Employers should immediately do the following:
- Evaluate the potential hazards for COVID-19 exposure that employees face in performing different workplace tasks and classify those tasks in accordance with the standard.
- Review existing policies related to COVID-19 and revise and update those policies as necessary, including with respect to employee reporting of potential COVID-19 symptoms, social distancing, workplace cleaning and sanitization, and the like.
- Evaluate and modify workplace configurations to ensure compliance with the regulations, including areas like breakrooms and common spaces.
- For employers that may have employees performing tasks in the “medium,” “high,” and/or “very high” risk categories, ensure the availability of necessary PPE, develop an infectious disease plan, and create and conduct necessary training within the time frames established in the standard.
- Employers should document all changes to plans, policies, and procedures taken in order to comply with the standard.
- Continue to visit the DOLI website for guidance and updates on the standard.
Many of the mandates in this emergency standard mirror existing guidance from the federal OSHA and CDC. However, failing to follow the Virginia standard where it is more expansive than CDC guidelines may result in an enforcement action and possible penalties for noncompliance.
Sam Stecker Otero counsels employers and executives in all aspects of employment law. Sam routinely advises her clients on the requirements they face in hiring, employment policies, layoffs, discipline, EEOC Charges, discrimination allegations and wage and hour issues, including overtime and classification determinations. She also defends allegations of harassment as well as disputes arising out of employment contracts, including covenants not to compete.-