Labor & Employment Law Daily Virginia’s first-in-the-nation new emergency workplace safety standards will help protect workers from COVID-19 spread
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Tuesday, July 21, 2020

Virginia’s first-in-the-nation new emergency workplace safety standards will help protect workers from COVID-19 spread

By WK Editorial Staff

The newly adopted standard requires all employers to mandate social distancing measures and face coverings for employees in customer-facing positions and when social distancing is not possible.

The Virginia Safety and Health Codes Board on July 15, adopted §16 VAC 25-220, Emergency Temporary Standard, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19. According to Governor Ralph Norton in a July 15 news release, these first-in-the-nation safety rules will protect Virginia workers by mandating appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth. The actions come in the absence of federal guidelines.

Mandated protections. The newly adopted standard requires all employers to mandate social distancing measures and face coverings for employees in customer-facing positions and when social distancing is not possible, provide frequent access to hand washing or hand sanitizer, and regularly clean high-contact surfaces. In addition, new standards require all employees be notified within 24 hours if a coworker tests positive for the virus. Employees who are known or suspected to be positive for COVID-19 cannot return to work for 10 days or until they receive two consecutive negative tests.

The standard also requires that employers ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies, to the extent feasible and permitted by law, including but not limited to the Families First Coronavirus Response Act.

This new standard is still being finalized and is expected to be made available on the Department’s website the week of July 27. In accordance with Va. Code §40.1-22(6a), the Emergency Temporary Standard (ETS) will take immediate effect upon publication in a newspaper of general circulation, published in the City of Richmond, Virginia. The temporary emergency standards will remain in effect for six months and can be made permanent.

Training and guidance. The emergency temporary standards, infectious disease preparedness and response plan templates, and training and outreach products and guidance, which are being developed by the VOSH Cooperative Programs Division, will be posted on the Virginia Department of Labor and Industry website at doli.virginia.gov and will include:

  • COVID-19 Training PowerPoint for Employers and Employees with an included training certification form;
  • ETS Training PowerPoint that explains the elements of the standard with an included training certification form (including different versions for different industries);
  • FAQs about the standard;
  • Infectious Disease Preparedness and Response Plan Template (including different versions for different industries);
  • Training PowerPoint on how to develop an Infectious Disease Preparedness and Response Plan Template with an included training certification form; and
  • Flowchart for determining how to classify job tasks by hazards employees are potentially exposed to for “very high”, “high”, “medium”, and “lower” exposure risk levels

Deadlines. Covered employers will be given 60 days from the effective date of the ETS to develop and train employees on their Infectious disease preparedness and response plan required under §16 VAC 25-220-70. Covered employers will be given 30 days to train employees on the standard under §16 VAC 25-220-80.

Directive. Governor Northam directed the creation of enforceable regulations in May through an executive order (E.O. No. 63 (2020)). That Order requires patrons aged 10 and over to wear face coverings when entering, exiting, traveling through, and spending time in certain settings, including in and around certain business establishments. The Order also requires employees of essential retail businesses to wear face coverings whenever working in customer facing areas.

Workplace rules. However, the Order does not generally apply to employees, employers, subcontractors, or other independent contractors in the workplace. Instead, the Order called for the Department of Labor and Industry to provide emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards adopted in accordance with Sections 40.1-22(a) or 2.2-4011 of the Code of Virginia are to apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health program (16 VAC 25-60-20 and 16 VAC 25-60-30). The regulations and standards must address personal protective equipment, respiratory protective equipment, and sanitation, access to employee exposure and medical records and hazard communication. These regulations and standards cannot be in conflict with requirements and guidelines applicable to businesses set addressed in E.O. 61 and Amended Order of Public Health Emergency Three.

Safety and Health Codes Board. Although E.O. 63 does not specifically mention the Safety and Health Codes Board, the Board was addressed in a separate news release on May 26 in which the Governor “directs the Commissioner of the Department of Labor and Industry to develop the emergency temporary standards, stipulating that the standards “will require the approval by vote of the Virginia Safety and Health Codes Board and must address personal protective equipment, sanitation, recordkeeping of incidents, and hazard communication. Upon approval, the Department of Labor and Industry will enforce the standards through civil penalties and business closures.”

Proposed standard. The proposed emergency temporary standard is designed to establish requirements for employers to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID-19) to and among employees and employers. The standard would supplement and enhance existing VOSH laws, rules, regulations and standards that apply to the SARS-CoV-2 virus or COVID-19 disease-related hazards, including, but not limited to, those dealing with personal protective equipment, respiratory protective equipment, sanitation, access to employee exposure and medical records, occupational exposure to hazardous chemicals in laboratories, hazard communication, Va. Code Section 40.1-51.1.A, etc.

Application of the standard to a place of employment will be based on the exposure risk level of the virus/disease-related hazards present or job tasks undertaken by employees at the workplace. “Exposure risk level” is an assessment of the possibility that an employee could be exposed to the hazards associated with SARS-CoV-2 virus and the COVID-19 disease, with hazards and job tasks divided into four exposure levels: “very high,” “high,” “medium”, and “lower.” Nothing in the standard is to be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.

In addition to specific standards based on exposure risk level that are detailed in the proposed standard, the following requirements would apply to all employers at all risk levels:

A.Exposure assessment and determination, notification requirements, and employee access to exposure and medical records. This includes:

1. Employers must assess the workplace for hazards and job tasks that can potentially expose employees to the SARS CoV-2 virus or COVID 19 disease. Employers must classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable standard for “very high,” “high,” “medium,” or “lower” risk levels of exposure.
2. Employers must inform employees of the methods of and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness.
3. Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19, and no alternative diagnosis has been made (i.e., tested positive for influenza). Such employees are to be designated by the employer as “suspected to have COVID-19.”
4. Employers are not to permit employees or other persons known or suspected to be infected with SARS-CoV-2 virus to report to or remain at the worksite or engage in work at a customer or client location until cleared for return to work. This would not prohibit employers from permitting such employees from engaging in teleworking or other form of isolation that would not result in potential exposure of the SARS-CoV-2 virus to others.
5. Employers must ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies, to the extent feasible and permitted by law, including but not limited to the Families First Coronavirus Response Act.
6. Employers must discuss with subcontractors, and with companies that provide contract or temporary employees about the importance of employees or other persons who are suspected to have COVID-19 and known COVID-19 cases staying home. Known and suspect to have COVID-19 subcontractor, contract, or temporary employees are not to report to or be allowed to remain at the worksite until cleared for return to work. Subcontractors shall not allow their employees with known or suspected to have COVID-19 cases to report to or be allowed to remain at work or on a job site until cleared for return to work.
7. To the extent permitted by law, including HIPAA, employers shall establish a system to receive positive SARS-CoV-2 tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being known or suspected to have COVID-19) present at the place of employment within the previous 14 days from the date of positive test, and the employer must notify:
a. Its own employees who, upon reasonable belief of the employer may have been exposed, within 24 hours of discovery of possible exposure while keeping the identity of the known COVID-19 person confidential in accordance with ADA requirements and requirements of other applicable federal and Virginia laws and regulations, and
b. Other employers whose employees were present at the worksite during the same time period, and
c. The building/facility owner. The building/facility owner must require all employer tenants to give notice of the occurrence of a SARS-CoV-2 positive test for any employees or residents of the building, to allow for necessary steps to sanitize the common areas of the building. The owner must also notify all employer tenants in the building that one or more cases have been discovered and the floor or area where the case was located. The identify of individuals are to be kept confidential;
d. The Virginia Department of Health with 24 hours of the discovery of a positive case;
e. The Virginia Department of Labor and Industry of the discovery of three or more employees present at the place of employment within a 14-day period testing positive for COVID-19 during that 14-day time period. Employers must ensure that employees have access to their own SARS-CoV-2 virus and COVID-19 disease related exposure and medical records in accordance with the standard applicable to the industry.

B.Return to work. All employers must develop and implement return to work policies and procedures for known COVID-19 or suspected COVID-19 employees to return to work using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances.

C.Physical distancing. Except as specifically provided in the standard, all employers must ensure that employees observe physical distancing on the job and during breaks on the employer’s property, including policies and procedures that (1) use verbal announcements, signage, or visual cues to promote physical distancing, (2) decrease worksite density by limiting non-employee access to the place of employment or restrict access to only certain workplace areas to reduce the risk of exposure, (3) an employer’s compliance with occupancy limits contained in the applicable Virginia executive order or order of public health emergency will constitute compliance with these requirements.

D.Closure/control of common areas. Employers must ensure that access to common areas, breakrooms, or lunchrooms are controlled or closed. Control includes signage and enforcement of maximum occupancy, physical distancing, sanitation, and cleaning/disinfecting. Employers may designate, reconfigure, and alternate use of spaces where employees congregate, including lunch and break rooms, locker rooms, etc., provided certain conditions are met.

E.Shared vehicles. If multiple employees occupy a vehicle for work purposes, the employer must ensure compliance with respiratory protection and personal protective equipment standards applicable to the industry.

F.Compliance with orders. Employers must also ensure compliance with mandatory requirements of any applicable Virginia executive order or order of public health emergency.

G.Face coverings/masks. If the nature of the employee’s work or the work area does not allow employees to observe physical distancing requirements, employers must ensure compliance with respiratory protection and personal protective equipment standards applicable to industry. Employers must also ensure compliance with mandatory requirements of any applicable Virginia executive order or order of public health emergency.

H.Exception to masks. An employee would not be required to use a respirator, surgical/medical procedure mask, or face covering if doing so would be contrary to that person’s health or safety because of a medical condition; However, this does not negate an employer’s obligation to comply with personal protective equipment and respiratory protection standards applicable to its industry.

I.Religious waivers. Requests to the Department for religious waivers from the required use of respirators, surgical/medical procedure masks, or face coverings are to be handled in accordance with the requirements of applicable federal and state law, standards, regulations and the U.S. and Virginia Constitutions, after Department consultation with the Office of the Attorney General.

J.Sanitation standards. Employers must adhere to VOSH standards for sanitation and disinfecting requirements, applicable to its industry. Employees that interact with customers, the general public, contractors, and other persons, must be provided with and immediately use supplies to clean and disinfect surfaces contacted during the interaction where there is potential for exposure to the SARS-CoV-2 virus by themselves or other employees. Employers must also comply with the VOSH hazard communication standard applicable to its industry. Among other things, employees must have easy, frequent access, and permission to use, soap and water, and hand sanitizer where feasible for the duration of work.

K.Personal Protective Equipment (PPE). Unless otherwise provided in the standard, when engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection, employers must provide personal protective equipment to their employees and ensure its proper use in accordance with VOSH laws, standards, and regulations applicable to personal protective equipment, including respiratory protection equipment.

Additional requirements apply for hazards or job tasks by classification of “very high” or “high” exposure risk, and “medium” exposure risks, including engineering controls (air quality control), administrative and work practice controls, personal protective equipment (PPE), and training. The standards also address infections disease preparedness and response plans for employers with hazards or job tasks classified as very high, high and medium (with 11 or more employees). The proposed standard may also prohibit discrimination against employees for exercising their rights under the standard.

Board action. The Board approved the regulations on July 15 after a series of hearings.

Poultry processing, meat packing reg. Notably, the Virginia Legal Aid Justice Center, Community Organizing, and Community Solidarity with the Poultry Workers organizations also petitioned the Commissioner of Labor and Industry to enact an emergency regulation to address COVID-19 related workplace hazards in the poultry processing and meatpacking industries.

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