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Executive Summary: As first discussed in our July 17, 2020 alert, the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) Program and the Virginia Safety and Health Codes Board have adopted an Emergency Temporary Standard for the COVID-19 Pandemic (ETS). The ETS, which went into effect on July 27, 2020, applies to all private, state, and local government employers and employees covered by VOSH jurisdiction. The ETS will expire six months from the effective date or upon expiration of the Governor’s State of Emergency, but the Safety and Health Codes Board is considering the adoption of a permanent replacement standard. VOSH has now released additional guidance for employers.

Background: Earlier this month, Virginia became the first state in the U.S. to establish and implement emergency workplace safety standards in response to the ongoing COVID-19 pandemic. The new standard requires employers to provide workers with personal protective equipment, ensure social distancing in the workplace where possible, and sanitize workplaces pursuant to set parameters. VOSH has now established training protocols, including a nine-step process to achieve compliance with the ETS, which can be found here.

Risk Assessments:

In addition to the obligations previously discussed, the ETS requires employers to conduct an initial assessment to evaluate hazards and job tasks that could potentially expose employees to COVID-19. Employers must classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of the ETS based on the following level of exposure:

• LOWER RISK: Jobs that do not require contact inside six feet with persons known to be, suspected of being, or that may be infected with COVID-19. These individuals have minimal occupational contact with other employees or the general public.
• MEDIUM RISK: Jobs that require more than minimal occupational contact, contact inside six feet with other employees or other persons that may be, but are not known or suspected to be, infected with COVID-19. These may include, but are not limited to, waiters, grocery store workers, agricultural workers, construction workers, domestic service workers, hairdressers, fitness instructors, workers in poultry and meat processing facilities, manufacturing workers, and healthcare workers in settings without known or suspected sources of COVID-19.
• HIGH RISK: Jobs with a high potential for employee exposure inside six feet to known or suspected sources of COVID-19. These include hospital workers, first responders, medical transport providers, mortuary services workers, medical and dental staff, non-medical support staff, long term care facility staff, and home healthcare workers.
• VERY HIGH RISK: Jobs with a high potential for employee exposure inside six feet to known or suspected sources of COVID-19 during the performance of specific medical, postmortem, or laboratory procedures with specimens from a known or suspected source of the virus.

As set forth in more detail below, the ETS imposes different sets of requirements on employers depending on the exposure risk levels employees may face in performing their job.  Importantly, as risk levels are “task specific” as opposed to “job” or “position” specific, it is possible that an employee may be classified as both “high” and “lower” risk depending on the assigned job tasks.

Training:

Employers with hazards or job tasks classified at “lower” risk shall provide written or oral information to employees exposed to such hazards or engaged in such job tasks on the hazards and characteristics and symptoms of COVID-19 and measures to minimize exposure.

Employers with medium, high, and very high risk workplaces must provide COVID-19 training to employees no later than August 26, 2020.

Training should cover the hazards, signs, and symptoms of COVID-19 and procedures to be followed in order to minimize the hazards. The training plan must include:

• A description of the requirements of the ETS;
• The mandatory and non-mandatory recommendations in any Centers for Disease Control (CDC) guidelines or State of Virginia guidance documents the employer is complying with regarding COVID-19;
• The characteristics and methods of spread of COVID-19;
• The signs and symptoms of COVID-19;
• Risk factors of severe COVID-19 with underlying health conditions;
• Awareness of the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the virus;
• Safe and healthy work practices;
• Use of personal protective equipment (PPE), including:
  • When PPE is required;
  • What PPE is required;
  • How to properly don, doff, adjust, and wear PPE;
  • The limitations of PPE; and
  • The proper care, maintenance, useful life, and disposal of PPE;
• Heat-related illness prevention, including the signs and symptoms of heat-related illness;
• The anti-discrimination provisions of ETS; and
• The employer’s Infectious Disease Preparedness and Response Plan.

Employers with hazards or job tasks classified as “very high”, “high”, or “medium” exposure risk must verify compliance by preparing a written certification record for those employees exposed to hazards or job tasks classified as “very high,” “high,” or “medium” exposure risk levels. The written certification record must contain the name or other unique identifier of the employee trained, the trained employee’s physical or electronic signature, the date(s) of the training, and the name of the person who conducted the training, or for computer-based training, the name of the person or entity that prepared the training material. VOSH has provided a sample training certification form here.

Infectious Disease Preparedness and Response Plan:

Employers with 11 or more employees and jobs classified as medium risk or employers with any number of employees and jobs classified as high or very high risk must prepare an Infectious Disease Preparedness and Response Plan and train employees on the practices no later than September 25, 2020.

The plan must:

• Include the name(s) or titles(s) of the person(s) responsible for administering the plan. This person(s) shall be knowledgeable in infection control principles and practices as they apply to the facility, service, or operation.
• Provide for employee involvement in development and implementation of the plan.
• Consider and address the level(s) of risk associated with various places of employment, the hazards employee are exposed to, and job tasks employees perform at those sites.
• Where, how, and to what sources of COVID-19 might employees be exposed at work, including:
  • The general public, customers, other employees, patients, and other persons;
  • Known or suspected to be infected persons or those at high risk; and
  • Situations where employees work more than one job with different employers and encounter hazards or engage in job task that present a “very high,” “high,” or “medium” level of exposure risk.
• As permitted by law, including the Health Insurance Portability and Accountability Act (HIPPA), employees’ individual risk factors.
• Engineering, administrative, work practices, and PPE controls necessary to address those risks.
• Consider contingency plans for situations that may arise as a result of outbreaks.
• Identify basic infection prevention measures to be implemented.
• Provide for the prompt identification and isolation of known or suspected to be infected with COVID-19 employees away from work, including procedures for employees to report when they are experiencing symptoms of COVID-19.
• Address infectious disease preparedness and response with outside businesses.
• Identify the mandatory and non-mandatory recommendations in any CDC guidelines, Commonwealth of Virginia guidance documents and any applicable Virginia executive order or order of public health emergency related to COVID-19.

Additional Requirements:

Employers must also offer flexible sick leave policies, telework, staggered shifts, and other administrative/work practice controls when feasible to reduce or eliminate contact with others inside six feet. They must also encourage employees to report symptoms by ensuring employees are aware of any company sick leave policies and alternative working arrangements, as well as the paid sick leave available through the Families First Coronavirus Response Act (FFCRA).  (For more information on FFCRA, see FordHarrison’s March 19, 2020 and April 3, 2020 alerts.

All employers must establish and implement the following:

• A system for employee self-assessment and screening for COVID-19 signs and symptoms.
• Procedures that will prevent sick employees and other persons from infecting healthy employees. The procedures must include work practice controls that eliminate or significantly reduce employee exposure to COVID-19; ensure that employees observe physical distancing while on the job and during paid breaks; require employees to comply with the safety and health practices outlined in the ETS related to PPE, sanitation, disinfection, and hand-washing; and provide PPE to employees and ensure its proper use when necessary.
• Procedures to ensure employees known or suspected of having COVID-19 do not come to work, as well as procedures for them to return to work. This return to work policy must include a prohibition on employees known or suspected of having COVID-19 from reporting to work until they have been cleared to return through either a symptom-based or test-based strategy or consultation with appropriate healthcare professionals concerning when an employee’s symptoms indicate it is safe for them to return to work.
• A system for notifying employees, building owners, and other employers of workplace exposures to the virus and suspected or confirmed cases so that they can take personal actions to protect their health and safety.

Finally, employers must ensure that they are in compliance with the anti-discrimination provisions in the new ETS.  This includes refraining from discharging or in any way discriminating against an employee because they have raised a reasonable concern about infection control regarding COVID-19 in the workplace with the employer, other employees, a government agency, or to the public through any form of media.

Enforcement:

Although the regulations do not specify enforcement procedures, the Virginia DOLI has been authorized to enforce the ETS, including through civil penalties and potential business closures.

Other Considerations:

The ETS specifically notes that it shall not conflict with any requirements and guidelines applicable to business set out in any applicable Virginia executive order or order of public health emergency.

Additionally, the regulations provide that an employer’s actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate COVID-19 related hazards or job tasks addressed by this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard.  Employers should be wary of relying solely on CDC guidance because, as noted above, the Virginia regulations go beyond current CDC guidelines and have additional requirements.

Employer’s Bottom Line: The ETS has many onerous requirements for all Commonwealth employers and compliance will be challenging.  Employers should immediately conduct a risk assessment for all job tasks and comply with the requisite obligations associated with such risks. Employers should also keep in mind that under VOSH regulations, employees have the right to refuse an assigned task because of a reasonable fear of injury or death.  While Virginia is the first state to pass such comprehensive standards, other states will likely follow suit.

If you have any questions related to this new standard, implementation of workplace safety measures, or any other employment related issues, please contact the authors of this Alert, B. Patrice Clair, pclair@fordharrison.com, a partner in our Washington D.C. and Tysons Corner offices, Jacki Thompson, jthompson@fordharrison.com, a partner in our Washington D.C. and Tysons Corner offices, or the FordHarrison attorney with whom you usually work.