Key Notes:
- Virginia became the first state to enact a temporary workplace safety standard intended to “control, prevent, and mitigate the spread” of COVID-19.
- The standard imposes requirements on employers proportional to the self-designated risk status of their employees’ job tasks.
- The standard was approved by the Virginia Department of Labor and Industry’s Safety and Health Codes Board and will be enforced by the Virginia Occupational Safety and Health Program. Non-compliance may result in civil penalties.
- The standard, which took effect on July 27, expires after six months or “upon expiration of the Governor’s State of Emergency.” During this time, the Board will consider adopting a permanent safety standard.
On July 15, Virginia became the first state to enact a temporary workplace safety standard specific to COVID-19. The standard, which was approved by the Virginia Department of Labor and Industry’s Safety and Health Codes Board, took effect on July 27 and will expire after six months or “upon expiration of the Governor’s State of Emergency.” However, the Board will be considering the adoption of a permanent COVID-19 safety standard during this period. The standard supplements existing Virginia Occupational Safety and Health (VOSH) Program standards and applicable OSHA standards that apply more generally to the COVID-19 pandemic as enforced by VOSH with respect to private employers and state and local governments in Virginia.
The standard requires all employers to assess their workplaces for hazards and job tasks that can potentially expose employees to COVID-19 and to self-designate an exposure risk level for each job task completed in the workplace. Exposure risk levels are defined as “very high” (jobs that require direct contact with persons known or suspected to be infected), “high” (all healthcare jobs not classified as “very high”), “medium” (jobs requiring minimal occupational contact with others inside of six feet) and “lower” (jobs that generally require no contact with others inside of six feet).
When conducting job task assessments and self-designating exposure risk levels, employers are encouraged to consider:
- the nature of the job task and working distance between employees;
- the known or suspected presence of COVID-19 in the workplace;
- the number of employees in relation to the size of the work area; and
- the duration, frequency and type of exposure to the virus through contact with other employees, the public, airborne hazards or contaminated surfaces.
However, the standard does note that office jobs will generally be considered lower risk and that most non-office jobs outside of the healthcare setting will be considered medium risk.
Requirements Imposed on All Employers Regardless of Job Task Risk Level
The standard requires all employers, regardless of their job tasks’ risk levels, to implement policies and procedures related to employee COVID-19 testing and reporting of positive cases. Additionally, the standard requires all employers to adopt several safe workplace practices, such as not allowing employees who are known or suspected to be infected to remain in the workplace, cleaning and disinfecting the workplace, and providing appropriate personal protective equipment to employees.
Additional Requirements for Employers with Very High, High and Medium Risk Job Tasks
In addition to the above requirements, employers with job tasks that are designated as very high or high risk must implement other policies and procedures, such as isolating patients who are known or suspected to be infected, prescreening employees for COVID-19 symptoms at the start of every shift, and restricting non-employee access to the workplace. Additionally, the standard requires, where feasible, the implementation of several safe workplace practices, such as staggered work shifts, physical distancing between employees, curbside pickup and delivery, and utilization of technology to conduct meetings and deliver services remotely.
For medium risk job tasks, employers must require employees in customer-facing jobs to wear face coverings and, where feasible, implement the safe workplace practices required for very high and high risk job tasks listed above.
Return to Work Requirements
The standard also requires all employers to develop and implement policies and procedures for employees who are known or suspected to be infected, as well as for infected asymptomatic employees, to return to work using one of three approved strategies: symptom-based, test-based or time-based.
- The symptom-based strategy excludes an employee from returning to work until at least three days have passed since recovery, resolution of fever and improvement of respiratory symptoms; and at least 10 days have passed since the symptoms first appeared.
- The test-based strategy excludes an employee from returning to work until they have had two negative COVID-19 tests collected at least 24 hours apart. The tests must be administered at the employer’s expense.
- The time-based strategy excludes an employee who is known to be infected and asymptomatic from returning to work until 10 days have passed since their first positive test.
Training and Infectious Disease Preparedness Response Plan Requirements
Employers with job tasks designated as medium risk who have 11 or more employees and employers with very high or high risk job tasks are required to implement a written infectious disease preparedness response plan. The plan must consider contingencies related to the possibility of a COVID-19 outbreak in the workplace and identify the infection prevention measures that will be implemented.
Employers with job tasks designated as very high, high or medium risk are also required to provide training to all employees, which must enable employees to “recognize the hazards of…and signs and symptoms of COVID-19” and inform employees of the policies and procedures that will be implemented to mitigate their exposure to the virus.
Liability
The standard will be enforced by the VOSH Program. Non-compliance may result in civil penalties, which will range in size depending on the severity of the violation, along with further enforcement directives. The Virginia regulations overlap with but do not nullify employers’ obligations under federal law. Employers should continue to ensure that they are also following guidance from OSHA.
Looking Forward
While Virginia may be the first state to enact a workplace safety standard specific to COVID-19, we do not expect it to be the last. With COVID-19 cases spiking across the country and many experts calling for a second shutdown, it is likely that other states will enact similar standards, possibly in the coming weeks.
FOR MORE INFORMATION
For more information, please contact:
M. Scott Young
513.352.6617
202.263.4134
Scott.Young@ThompsonHine.com
Anthony P. McNamara
513.352.6657
Anthony.McNamara@ThompsonHine.com
William J. Hubbard
216.566.5644
Bill.Hubbard@ThompsonHine.com
or any member of our Labor & Employment or Product Liability Litigation group.
Additional Resources
We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.
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