Virginia’s Emergency Temporary Standard Addressing COVID-19 and Workplace Safety Takes Effect

On July 27, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board published its Emergency Temporary Standard on Infectious Disease Prevention: SARS-CoV-2 That Causes COVID-19 (§16 VAC 25‐220) (the Standard). In doing so, Virginia became the first state to enact comprehensive COVID-19 workplace safety requirements.

The Standard applies to all private, state and local government employers and employees under the jurisdiction of the Virginia Occupational Safety and Health program and establishes requirements for employers that are intended to control, prevent and mitigate the spread of SARS-CoV-2, the virus that causes COVID-19. Under the Standard, employers must undertake an initial assessment of the potential for employee exposure to the hazards associated with SARS-CoV-2 and the COVID-19 disease and classify such hazards and job tasks into one of four risk exposure levels. Depending on the risk exposure level, employers must provide employee training addressing such risks, adopt certain controls to reduce the risk of transmission, and develop and implement an Infectious Disease Preparedness and Response Plan. The majority of the requirements take effect immediately, although additional time is provided to implement training and the response plan.

Mandatory Requirements for All Employers

The Standard establishes certain mandatory requirements that all employers must follow unless they have adopted recommendations contained in Centers for Disease Control and Prevention (CDC) guidelines that provide equivalent or greater protection. These requirements address employee education, infection prevention and measures to address known or suspected infections and include:

• Implementing physical distancing measures and cleaning and disinfecting procedures, and making hand washing facilities and hand sanitizer available where feasible.
• Informing employees of the signs and symptoms of COVID-19 and encouraging self-monitoring.
• Implementing policies and procedures for employees to report when they are experiencing symptoms of COVID-19 and no alternative diagnosis has been made.
• Establishing a system for receiving notification of an employee’s or contractor’s positive test if the employee or contractor has been present at the place of employment within 14 days from the date of the positive test.
• Providing notification (while protecting employee confidentiality) to other employees, other employers at the same worksite, and the building or facility owner of any potential exposure with 24 hours of discovery of the potential exposure.
• Providing notification of positive tests to the Virginia Department of Health and providing notification of certain clusters of positive cases to the Virginia Department of Labor and Industry.

Employers must not allow employees known or suspected to be infected with the SARS-CoV-2 virus to report to or remain at the work site and must implement reasonable return to work policies using a “symptom-based” or “test-based” strategy. Although employers have some latitude in developing reasonable policies based on local healthcare and testing circumstances, the Standard provides detailed requirements that, when met, will constitute compliance.

Notably, the Standard provides that serological testing (also known as antibody testing) “shall not be used to make decisions about returning employees to work who were previously classified as known or suspected to be infected with the SARS-CoV-2 virus.” A test-based return to work strategy must utilize molecular assays and testing must result in at least two consecutive negative respiratory specimens collected 24 hours or more apart for an employee to return to work. To the extent an employer implements a test-based strategy, the employer may not require the employee to pay for the cost of COVID-19 testing for return to work determinations.

Additional Requirements Based on Risk Assessments

In addition to the mandatory requirements stated above, the Standard requires employers to conduct an initial assessment to evaluate the COVID-19-related hazards present and the job tasks undertaken by the employees and classify the exposure risk level as “very high,” “high,” “medium,” or “lower” risk. After engaging in employee discussions, considering job procedures, reviewing available data related to work-related injuries or illnesses, and inspecting the layout of the workplace, the location of the employees, work operations and use of PPE, employers will classify each job function into one of four risk categories:

• Very High Risk: Includes medical, postmortem or laboratory procedures with high potential for employee exposure to known or suspected sources of the SARS-CoV-2 virus or persons known or suspected to be infected with SARS-CoV-2 virus, including aerosol-generating procedures, collecting or handling specimens and performing autopsies.
• High Risk: Includes healthcare services with high potential for employee exposure inside six feet of persons known or suspected to be infected with the SARS-CoV-2 virus. The high risk category includes such services as skilled nursing services, outpatient medical services, clinical services, drug treatment programs, medical outreach services, mental health services, home health care, nursing home care, assisted living care, memory care support and services, hospice care, rehabilitation services, primary and specialty medical care, dental care, COVID-19 testing services, blood donation services, contact tracer services, chiropractic services, first responder services, medical transport services and mortuary services where the services are to persons known or suspected of infection.
• Medium Risk: Includes job tasks that require more than minimal occupational contact inside six feet with other employees, other persons or the general public who may be infected with SARS-CoV-2, but who are not known or suspected to be infected with the SARS-CoV-2 virus. Such industries include retail, agriculture and hand labor, commercial transportation, education, daycare, restaurants, construction, personal care, sports and entertainment venues and fitness facilities, as well as healthcare situations not involving exposure to known or suspected sources of SARS-CoV-2.
• Lower Risk: Includes situations in which employees have minimal occupational contact with other employees, other persons or the general public, such as in an office building setting; or where employees are able to achieve minimal occupational contact through physical distancing, physical barriers, staggered work shifts and remote delivery of services.

Employers with “very high” or “high” exposure risk hazards or job tasks must implement certain engineering controls, which may include air handling system controls or the installation of physical barriers. These employers must also implement administrative and work practice controls, which include surveying or prescreening for signs or symptoms of COVID-19, limiting non-employee access to the worksite, posting signs encouraging the reporting of symptoms and use of masks, and providing job-specific education and training on preventing transmission of COVID-19. Where “very high” or “high” exposure risk is present, employers must also select, and have each affected employee use, personal protective equipment that is adequate to protect against the identified hazards, communicate the selection decisions to each affected employee, and select PPE that properly fits each affected employee.

Employers with hazards or job tasks classified as “medium” exposure risk must ensure that air-handling systems are appropriate to address the identified hazards and install physical barriers where appropriate to mitigate the spread of COVID-19. The Standard also calls for administrative and work practice controls, including surveying or prescreening for signs or symptoms of COVID-19, encouraging physical distancing and putting in place flexible worksites and schedules. Where personal protective equipment is not required, employees with medium risk exposure must be provided with face coverings when physical distancing is not feasible and where such employees are in a customer-facing job.

Infectious Disease Preparedness and Response Plan

Employers with “very high” and “high” risk levels and employers with 11 or more employees and a “medium” risk level must develop and implement a written Infectious Disease Preparedness and Response Plan (the Plan) and designate an individual responsible for implementing the Plan. The requirement for developing and implementing a written Infectious Disease Preparedness and Response Plan takes effect on September 25, 2020. The Plan, which must be developed and implemented with employee involvement, shall:

• Provide the name and title of an individual responsible for administering the Plan, who is knowledgeable in infection control principles and practices as they apply to the facility, service or operation.
• Identify and address the levels of risk associated with various places of employment, the respective hazards and the job tasks employees perform at those sites.
• Consider how employees might be exposed to SARS-CoV-2 or COVID-19 at work and what engineering, administrative, work practices and personal protective equipment controls are necessary to address those risks.
• Consider contingency plans for situations that may arise as a result of outbreaks, such as increased rates of employee absenteeism, the need for physical distancing or modifying operations to reduce exposure, conducting essential operations with a reduced workforce, and interrupted supply chains or delayed deliveries.
• Identify basic infection prevention measures to be implemented, including frequent hand washing, regular cleaning and disinfecting of surfaces, equipment and other elements of the work environment, and policies and procedures for managing and educating visitors to the place of employment.
• Provide for the prompt identification and isolation of known or suspected to be infected employees.
• Identify recommendations in CDC guidelines and Virginia guidance documents and ensure compliance with mandatory requirements of any applicable Virginia executive order or order of public health emergency related to the SARS-CoV-2 virus or COVID-19 disease.

Employee Training

Employers with “very high,” “high,” or “medium” exposure risk must also provide training on the hazards and characteristics of the SARS-CoV-2 virus and COVID-19 disease to all employees working at the place of employment regardless of employee risk classification. The training program shall enable each employee to recognize the hazards of the SARS-CoV-2 virus and signs and symptoms of COVID-19 disease and shall train each employee in the procedures to be followed in order to minimize these hazards. Training is to include:

• The requirements of the Standard, including the anti-discrimination provisions.
• The CDC and Virginia recommendations that the employer is complying with, if any.
• The signs and symptoms of the COVID-19 disease and the characteristics and methods of transmission of the SARS-CoV-2 virus, risk factors of COVID-19 illness and the risk of pre-symptomatic and asymptomatic transmission of COVID-19.
• Safe and healthy work practices, including physical distancing, disinfection procedures, disinfecting frequency, ventilation, noncontact methods of greeting, etc.
• The use, care, maintenance and disposal of PPE.
• The employer’s Plan, where and when applicable.

In some cases, employers must verify compliance by preparing a written certification record for the employees’ signatures.

Employers with “lower” exposure risk employees must provide written or oral information on the hazards and characteristics of SARS-COV-2 and the symptoms of COVID-19, the risk of transmission by pre-symptomatic and asymptomatic persons, measures to minimize exposure, safe and healthy work practices and control measures, and the requirements of the Standard, including the anti-discrimination provisions.

Anti-Discrimination Provision

The Standard prohibits discrimination against individuals who exercise their rights under the safety and health provisions of the Standard or certain other provisions of Virginia law, who opt to use their own personal protective equipment (assuming such use does not create a hazard), and who raise reasonable concerns about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social or any other media.

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The Standard expires automatically in six months, or upon repeal or expiration of the Governor’s State of Emergency. The Standard may also be superseded by a permanent standard.

Faegre Drinker’s Coronavirus Resource Center is available to help you understand and assess the legal, regulatory and commercial implications of COVID-19.