Virginia Department of Labor and Industry Adopts First-in-Nation Emergency COVID-19 Workplace Standards

Virginia Department of Labor and Industry Adopts First-in-Nation Emergency COVID-19 Workplace Standards

Introduction

After much debate, the Safety and Health Codes Board of the Virginia Department of Labor and Industry (“DOLI”) passed, and Governor Northam approved, emergency workplace standards (hereinafter referred to as “the Standards”) in response to the COVID-19[1] pandemic. The Standards will take effect during the week of July 27, 2020 following publication, with 30-60 day employer deadlines thereafter for undertaking hazard assessments, implementing training, and creating preparedness/response plans. The Standards apply to every employer under the jurisdiction of the Virginia Occupational Safety and Health (“VOSH”) program[2] and are intended to prevent and mitigate the spread of COVID-19 in the workplace.

Step One: Classification of Risk in the Workplace

DOLI expects Virginia employers to apply the Standards by analyzing the COVID-19 exposure risk level presented by hazards and job tasks in the workplace and classifying each hazard or job task as either “very high”, “high”, “medium”, or “lower” risk according to the following categories:

• “Very high” risk tasks or hazards are those with “high potential for employee exposure to known or suspected sources” of COVID-19 or persons known or suspected to have COVID-19, including aerosol-generating medical, postmortem, or laboratory procedures and collecting or handling specimens from known or suspected COVID-19 patients.
• “High” risk hazards or tasks are those with high potential for employee exposure within six feet to suspected sources of COVID-19. This includes many healthcare settings that do not classify as “very high” risk.
• “Medium” risk hazards or tasks are those that require more than minimal occupational contact with other persons or the general public who are not known or suspected to have COVID-19.
• “Lower” risk hazards or tasks are those that do not require occupational contact within six feet of other persons.

The risk associated with each task depends on the workplace conditions under which it is performed; employers implementing measures such as physical barriers, staggered shifts, or telecommuting can lower the classification of a task or hazard.

DOLI provides a non-exhaustive list of factors that employers should consider in a holistic evaluation of workplace risk.[3] If an applicable CDC guideline presents equivalent or greater protection than a provision of the Standards, then DOLI will consider compliance with the CDC guideline to be compliant with the Standards. DOLI will look at evidence of an employer’s actual good faith compliance with applicable CDC guidance in any enforcement proceeding concerning the Standards.

Employers should inform employees of the signs and symptoms of COVID-19 and should encourage employees to self-monitor for these signs and symptoms. Employers should prevent employees and other persons known or suspected to have COVID-19 from entering the worksite until they have been cleared for return to work. The Standards do not prevent an employer from permitting a known or suspected COVID-19 positive employee from teleworking or working in isolation that does not present risk to other employees.

Step Two: Implementing New 24 Hour Reporting Requirements

To the extent permitted by other applicable laws, employers must establish a system to receive reports of COVID-19 positive persons who have been on the worksite within the previous 14 days (excluding patients hospitalized because they have, or are suspected of having, COVID-19). The employer must then notify all other employees who were possibly exposed, other employers with employees present on the worksite who may have been exposed, the building/facility owner, and the Virginia Department of Health within 24 hours, while keeping the infected individual’s identity confidential. If three or more employees test positive within a 14-day period, the employer must notify DOLI within 24 hours of discovery of the third positive test. Notifications to state agencies are potentially subject to disclosure under FOIA.

Step Three: Establishing New Workplace Practices

Under the Standards, employers should ensure that employees practice social distancing as much as possible while on the job and during paid breaks. Employers should close common areas or limit access to ensure social distancing. Employers should post requirements to social distance, clean and disinfect shared surfaces, hand washing/sanitizing, and common area occupancy limits. When the employee’s work or work area does not allow the observation of appropriate social distancing, employers shall ensure the employee complies with respiratory and personal protective equipment (“PPE”) standards for their industry, including when employees are occupying a vehicle for work purposes. Employers should put up barriers such as sneeze guards where appropriate to enforce social distancing.

Employers must continue to comply with the VOSH sanitation standard that applies to its industry, including the availability of handwashing facilities and hand sanitizers. Employers should ensure that all shared surfaces are disinfected at the end of each shift and shared tools are disinfected before being passed to another employee. When an employer has a known or suspected infected employee, the employer must clean and disinfect areas accessed by such individual prior to allowing further employee access to the area, unless the area has been unoccupied for at least seven days.

An employer must allow employees to wear their own provided PPE as long as that PPE does not create a greater hazard to the employees or any other employees. An employee’s reasonable infection control concerns related to COVID-19 are protected speech regardless of the medium in which the speech is conveyed. Nothing in the Standards limit an employee’s ability to refuse to enter a work location that the employee feels is unsafe.[4]

• Workplace Practices for Employers with at Least Medium Risk

All employers with tasks or hazards of at least medium risk are required to prescreen all employees for COVID-19 symptoms when they report to work. Employers should limit access to the workplace by other persons as much as possible to reduce the risk of exposure. Employers should implement as much flexibility in the workplace as possible by promoting telework, staggering shifts, delivering services and goods remotely, and readjusting the physical workplace as much as possible to promote appropriate social distancing. Customer-facing employees must be provided face coverings.

Employers with medium risk tasks are required to evaluate the workplace to see if use of PPE is necessary. Such employers must maintain assessment documentation and include an employee representative in this evaluation. If such tasks or hazards are at least likely to be present, the employer must have the affected employees use appropriate PPE that fits the employees. Employees classified as “very high” or “high” risk must have gloves, a gown, a face shield or goggles, a mask, and a respirator when coming within six feet of an infected, or suspected to be infected, patient. Employees must receive training on these requirements within 30 days of the effective date of the Standards.

• Return to Work Policies After COVID-19 Exposure

Employers must develop and implement a return to work policy and procedure for known or suspected COVID-19 positive and symptomatic employees using a symptom-based or test-based protocol.[5] Employers must also develop and implement a return to work policy and procedure for asymptomatic, COVID-19 positive employees using a time-based or testing-based method. The time-based method requires the employer to exclude the employee from the workplace for ten days after the employee’s first positive COVID-19 test unless an employee subsequently develops symptoms. If the employee develops symptoms, then either the symptom- or test-based protocols applicable to known or symptomatic employees applies.

An employer is not allowed to require the employee to pay for the cost of a return to work COVID-19 test.[6] However, nothing in the standard prohibits an employer from requiring a known to be infected employee to be tested.

Step Four: Developing an Infectious Disease Preparedness and Response Plan

Employers with “very high” and “high” risk tasks and hazards must develop and implement a written Infectious Disease Preparedness and Response Plan. This requirement applies to “medium” risk employers with at least 11 employees as well. The Plan shall:

• Identify the name and title of the person responsible for implementing it. This person is required to have knowledge of the employer’s infection control principles and practices.
• Provide for employee involvement in the development and implementation of the Plan.
• Consider and address the risk presented by the various job tasks and hazards and, as much as practical, employees’ individual risk factors.
• Consider contingency plans for situations that may arise due to outbreaks.
• Identify basic infection prevention measures that should be implemented.
• Provide for prompt identification and isolation of known or suspected infected employees away from work. This should include protocols for employees reporting when they are experiencing symptoms of COVID-19.
• Address infectious disease preparedness and response with outside business.
• Identify mandatory and non-mandatory CDC recommendations that the employer is complying with in lieu of any provisions of the Standards.
• Ensure compliance with mandatory requirements of any applicable Virginia executive order or order of public health emergency related to COVID-19.

Employers must implement the Plan and begin employee trainings on the Plan within 60 days of the effective date of the Standards.

Step Five: Training Employees

Employers with tasks and hazards classified as at least “medium” risk must train employees on the hazards and characteristics of COVID-19. The training should help employees identify the symptoms of COVID-19 and train the employees on the standards that should be followed to minimize risk. The training must cover:

• The requirements of the Standards;
• CDC guidelines the employer is complying with in lieu of any provisions of the Standards;
• Characteristics and methods of transmitting COVID-19;
• Signs and symptoms of COVID-19;
• Risk factors of severe COVID-19 illness with underlying health conditions;
• Awareness of the ability of pre-symptomatic and asymptomatic persons to transmit COVID-19;
• Safe and healthy work practices, including social distancing and proper disinfection and sanitation procedures;
• When and what PPE is required, and how to properly wear, maintain, and adjust PPE;
• The anti-discrimination provisions of the Standards; and
• The Infectious Disease Preparedness and Response Plan, if the employer has more than 11 employees.

Compliance with this section must be documented in writing. If the employer believes an employee is falling short of the knowledge and best practices they were trained on under this section, the employer must retrain the employee. The required training must be completed within 30 days of the effective date of the Standards.

Employers with hazards or tasks at “lower” risk must provide written or oral information to employees concerning the hazards and characteristics of COVID-19 and measures to limit exposure. Such materials must include:

• The requirements of the Standard;
• Characteristics and methods of transmission of COVID-19;
• Symptoms of COVID-19;
• Ability of pre-symptomatic and asymptomatic persons to transmit COVID-19;
• Safe and healthy work practices, including social distancing and proper disinfection and sanitation procedures; and
• The anti-discrimination provisions of the Standards.

Anti-Discrimination Concerns for Employers

One area of particular concern for employers is how the anti-discrimination rules further erode Virginia’s “at-will” employment doctrine. In addition to limiting discharge for employee refusal to work under conditions they believe to be unsafe or for filing COVID-19 safety complaints, the Standards appear to allow employees to make social media posts or other public declarations about infection control issues without first bringing their concerns to the employer. Employers should be open to hearing employee concerns and could consider setting up an internal system for receiving such concerns or complaints regarding COVID-19 safety measures.

Enforcement Considerations

Employers who violate provisions of the Standards may be subject to fines of up to $130,000. While employers should take the Standards seriously to promote public health and avoid enforcement action, DOLI reportedly has an enforcement staff of less than 80 and has repeatedly expressed its willingness to work with employers acting in good faith. The Standards will remain in effect for six months or until the pandemic resolves and the Governor rescinds the related Executive Order declaring a State of Emergency. Additionally, DOLI may issue a permanent rule that supersedes the Standards.

Should you or your workplace have any questions about the Standard, please contact Peter Mellette, Harrison Gibbs, or Elizabeth Dahl Coleman at Mellette PC.

This client advisory is for general educational purposes only and does not cover every provision in the Standard. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

[1] For convenience purposes, this advisory will collectively identify the SARS-CoV-2 virus and the COVID-19 disease that comes from the virus as COVID-19.

[2] According to 16 VAC 25-60-20, this applies to all employers and employees except for the Federal government and contractors who work at government facilities. There were efforts to exempt healthcare entities consistent with CDC guidelines that failed. Interestingly, the CDC COVID-19 duration and isolation guidelines upon which the Standards are based have already evolved. See https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html (shortening and extending certain isolation periods and showing the difficulty in establishing a set standard to apply, even for a six month period).

[3] 16 VAC 25-220-10.E.2.

[4] See 16 VAC 25-60-110 for requirements concerning discharging and/or disciplining employees who refuse an assigned task because of reasonable fear of injury or death.

[5] Under the symptom-based approach, employees cannot return to work until 72 hours have passed since recovery from fever without the use of a fever reducer medication and improvement in respiratory symptoms and 10 days have passed since the first onset of symptoms. If the employer opts for the test-based strategy, an employee is excluded from returning to work until the employee’s fever resolves without the use of medication, respiratory symptoms improve, and the employee has two consecutive negative test results from FDA approved tests from specimens collected more than 24 hours apart. If an employee refuses testing, use of the symptom-based protocol can be considered compliant for that employee.

[6] COVID-19 testing is considered a “medical examination” under Va. Code § 40.1-28.