Hunton Employment & Labor Perspectives

Virginia became the first state in the country to pass a workplace safety standard specific to COVID-19 on July 15.  It includes hazard assessment, communication and training requirements, depending on the types of tasks employees perform at work.

The Virginia Department of Labor and Industry (“DOLI”) passed its Emergency Temporary Standard for Infectious Disease Prevention related to COVID-19 after months of deliberation and revision.  The standard is expected to become effective on July 27, 2020.  Virginia is a state-plan state for OSHA purposes, so workplace safety rules are handled as part of the Virginia Occupational Safety and Health (“VOSH”) Program.  The new standard applies to all employers subject to VOSH jurisdiction.

The standard breaks down job tasks and employers by risk category, ranging from Very High Risk to Lower Risk.  High and very high risks tasks are reserved for healthcare and mortuary services involving contact with known or suspected COVID-positive persons.  Traditional office work tasks are classified as lower risk.  Medium risk job tasks involve certain specialty work, like meat processing, hand labor and commercial transportation, as well as tasks that involve frequent interaction with the public, like grocery stores, retail stores, exercise facilities and restaurants.  Employers must conduct an exposure assessment to determine which jobs tasks performed by their employees fall into which categories.

The standard includes dozens of requirements for all employers, regardless of risk category.  Employers must inform employees about COVID-19, including exposure risks and symptoms; develop policies for employees to report symptoms; exclude employees known or suspected to have COVID-19 from work; establish a notification system for other employees when they learn of a positive test; and notify DOLI if three or more employees test positive within the same 14 day period.  Employers must also ensure that employees observe physical distancing while on the job and during breaks, when consistent with job tasks, though the standard recognizes that some jobs require closer interaction.

Employers must also follow particular return to work protocols for employees who were excluded from work because of a positive COVID-19 test or suspected positive.  The standard spells out symptom-based, test-based and time-based evaluation methods employers may use to determine when employees may return to work.  If an employer elects to require employees to test negative for COVID-19 before return to work, the employer must pay for the tests.

Importantly, the standard includes a safe harbor provision if employers comply with CDC recommendations.  If an employer complies with relevant CDC guidance that is equally or more protective than the Virginia standard, then it will be considered in compliance with any similar Virginia requirements.  The employer must document which CDC guidance it is following to substitute for its obligations under the standard.

The standard requires several engineering, administrative and work practice controls for Medium to Very High risk employers, including use of proper air-handling equipment, installation of physical barriers and pre-shift employee symptoms screenings.  Medium risk employers may not need to implement all of the same controls as higher risk employers if such controls are not feasible.

Very high, high and medium risk employers with more than 11 employees must also developed an Infectious Disease Preparedness and Response Plan within 60 days of the effective date of the standard.  DOLI announced that it expects to release a sample plan that employers may use to craft their own policy to comply with this requirement.  The Plan must include infection prevention methods, contingency plans in the event of an outbreak, and address the various controls in place for different job tasks, among other things.

Medium to very high risk employers must provide training to employees within 30 days of the effective date of the standard.  The training must cover the requirements of the standard, characteristics of COVID-19 disease transmission, COVID-19 signs and symptoms, risk factors for severe illness based on underlying health conditions, the possibility for pre-symptomatic or asymptomatic spread, and safe and healthy work practices.  It must also address personal protective equipment, the employer’s Infectious Disease Preparedness and Response Plan, and the anti-discrimination requirements of the standard.

Lower risk employers do not have to provide formal training, but must distribute information to employees about hazards and characteristics of COVID-19.  DOLI intends to release an information sheet that employers may use to comply with this requirement.

Finally, the standard includes an anti-discrimination provision, which prohibits employers from taking adverse action against employees because they exercise rights under the standard, voluntarily wear personal protective equipment or raise reasonable concerns about infection control related to COVID-19 to the employer or the public, including through social media.

DOLI can enforce non-compliance with the new standard through civil penalties, ranging in size depending on the severity of the violation.  The standard will remain in effect and enforceable for six months after the effective date, unless a permanent standard is passed, the standard is repealed, or the Governor lifts Virginia’s state of emergency.

Employers will need to carefully analyze the job tasks their employees perform and consider the criteria provided by the standards to make accurate, good-faith risk category assessments.  Those assessments will impact the application of the rest of the standard to the workplace.  Employers should continue to look out for updates from DOLI about how it will interpret the standard, and consult experienced OSHA counsel on managing compliance.