All Virginia employers should be aware that the state’s Safety and Health Codes Board has adopted emergency temporary standards for occupational health and safety requirements in response to the coronavirus pandemic. The standards are now available on the Department of Labor and Industry website. The Standards will be published the week of July 27, 2020, and will remain in effect for six months (unless extended).
Virginia Governor Ralph Northam directed the development of the Standards at the same time he issued his Executive Order 63 requiring face coverings inside public buildings. The Occupational Safety and Health Administration (OSHA), which has federal oversight of workplace safety, has not implemented many COVID-19-specific requirements for employers. In May, OSHA updated its enforcement guidance for employers on recording COVID-19 as an occupational illness. The guidance, which is now in effect, includes factors to review to establish the reasonableness of an employer’s investigation into whether COVID-19 was contracted at work. However, OSHA has been criticized for failing to do more.
Unlike CDC guidelines, which provide guidance related to the health considerations of COVID-19, the new Standards are a legal requirement for any employer subject to VOSH’s jurisdiction. In general, the Standards require employers to assess the exposure risk in the place of employment and classify each job task according to the hazards employees are potentially exposed to as either “very high,” “high,” “medium,” or “lower” risk levels of exposure. All employers must implement policies and procedures that are intended to protect employees from workplace exposure to COVID-19 including:
- Informing employees of the methods for and encouraging employees to self-monitor for signs and symptoms of COVID-19;
- Implementing policies and procedures for employees to report that they are experiencing COVID-19 symptoms or have tested positive, while maintaining confidentiality as required by HIPAA/ADA;
- Requirements related to excluding employees or others who are suspected of infection from the workplace (but telework or other work isolation is permitted);
- Required coordination with subcontractors and staffing companies;
- Notification requirements when there is a positive test reported – to potentially exposed employees, other employers at the worksite, building owner, the Virginia Department of Health, and the Virginia Department of Labor in certain circumstances; and
- Development of return-to-work policies and procedures for known or suspected cases of COVID-19.
The Standards also address requirements for physical distancing (on the job and during breaks on property) and controlling access to common areas, breakrooms, and lunchrooms to require physical distancing, hand washing/sanitizing, and cleaning and disinfecting of shared surfaces and work locations. If physical distancing is not possible, employers shall comply with respiratory protection and personal protective equipment standards applicable to its industry. Heightened requirements for sanitation and disinfecting are also addressed to protect common areas and areas where customers or the general public are present, and areas where a person has been present who is suspected or confirmed to have COVID-19.
There are additional requirements related to the risk categories of “medium” or higher that address engineering controls (e.g., air-handling system requirements), administrative/work practice controls (e.g., screening employees, scheduling, and erecting physical barriers, face coverings for customer facing employees, etc.), and personal protective equipment (PPE).
Within 30 days, employers with employees in any of the risk categories higher than “lower” must also provide employee training related to the Standards. In addition, employees in the “lower” risk category must be provided with information, orally or in writing, of generally applicable information related to the Standards. A form of the notice required for “lower” risk employees will be developed by the Department of Labor.
Employers with “very high,” “high,” and/or at least 11 employees and “medium” risk job tasks must develop an infectious disease preparedness and response plan within 30 days after the Standards take effect and provide training to employees on the plan within 60 days. The requirements of the plan are addressed in the Standards.
Finally, the Standards include protections for employees from discrimination or discharge for exercising rights under the Standards, wearing their own PPE, or raising a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer or others, including the government or the public.
All Virginia employers should review the Standards and ensure compliance. For assistance with this or any other employment matter, please contact OFP Shareholder Marina Blickley at 703-218-2111, or any of the other employment attorneys at OFP.