Virginia Enacts Standards to Protect Workers from COVID-19 Exposure

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By:  Jayna Genti

Virginia is now the first state in the nation to enact mandatory workplace safety rules to prevent the spread of COVID-19.  The Emergency Temporary Standard (“ETS”) for Infectious Disease Prevention took effect July 27, 2020.  The new standard covers most private employers in Virginia, as well as all state and local employees, and will be enforced by Virginia Occupational Safety and Health (“VOSH”). Employers that fail to comply with the new rules face fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation.

Scope and Approach of the New Rules

The new temporary standards mandate that workers be provided with personal protective equipment and sets parameters for businesses to sanitize their worksites, enforce social distancing protocols, and implement infectious disease preparedness and response plans.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Gov. Ralph Northam said. “In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”

The ETS takes a layered approach to employee protection depending on each job’s exposure risk level and includes:

  • Minimum requirements that apply to all employers;
  • Enhanced requirements for employees in “medium” exposure risk jobs, such as commercial transportation, daycare, restaurants and bars, grocery stores, factories, construction, retail, salons, dentist offices, and gyms; and
  • Enhanced requirements for employees in “very high” or “high” exposure risk jobs, such as in laboratory or medical settings involving known or suspected COVID-19 patients or employees who provide healthcare or first responder services involving known or suspected COVID-19 patients.

Office Environments

Most office work environments will fall under the category of “lower” exposure risk since employees can avoid contact within six feet of persons known or suspected of having COVID-19.   In such an environment, employees should be able to achieve minimal contact by, for example, telecommuting, staggered work shifts, remote service delivery, floor-to-ceiling physical barriers (such as clear plastic walls at convenience stores behind which only one employee is working at any one time), or other forms of mandatory physical distancing of employees.

Face coverings are required when it is necessary for an employee to have brief contact with others inside the six feet distance, but face coverings are not a substitute for the other means of achieving minimal occupational contact.

Mandatory Requirements for All Virginia Employers

All employers now are required to take precautions to prevent the spread of COVID-19.

These include:

  • Assessing hazard levels of all job tasks and classifying each according to the standards outlined above from “very high” to “lower” exposure risk.
  • Providing information to employees on the hazards and characteristics of COVID-19 and the measures to minimize exposure and self-monitor for symptoms. (The Department of Labor and Industry is developing an information sheet that employers may use.)
  • Requiring social distancing or, when not possible, the wearing of face masks.
  • Closing common areas and breakrooms, or, if not possible, tightly controlling access to these areas to ensure physical distancing and requiring employees to disinfect the immediate area in which they were located prior to leaving or at regular intervals throughout the day.
  • Cleaning and disinfecting commonly used areas and equipment and providing frequent access to hand washing or hand sanitizer.
  • Ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Establishing a system to receive reports of positive COVID-19 tests by any employee or contractor present at the work site within 14 days from the date of the positive test. Within 24 hours of when a positive test report is received, employers must notify (while keeping identities confidential) all employees who may have been exposed; other employers whose employees may have been exposed; the building or facility owner (so that it may sanitize the common areas and notify tenants of the location of the case); and the Virginia Department of Health.  Employers are not required to conduct contact tracing, however.
  • Notifying VOSH of three or more positive COVID-19 tests within a two-week period.
  • Prohibiting employees who are known or suspected to be positive for COVID-19 from remaining at or returning to work or a customer or client location for at least 10 days after symptom onset and three days after symptoms pass, or after the employee receives two consecutive negative tests at least 24 hours apart, provided they are not antibody tests, which are considered less reliable.

Higher Risk Jobs

            Additional requirements apply to jobs classified as medium exposure risks and high or very high exposure risks.  The requirements include prescreening of employees and contractors for COVID-19 symptoms before entering the worksite, telework, staggered shifts, physical barriers, and air handling system requirements where appropriate.  In addition, these employers must provide training on the hazards and characteristics of the COVID-19 disease to all employees working at the place of employment regardless of employee risk classification.

With job tasks classified as high or very high (or as medium with 11 or more employees), employers further must develop and implement a written infectious disease preparedness and response plan.

Effective Dates and Expiration

The ETS took effect on July 27, 2020.  Employers, however, have an additional 30 or 60-day window to implement some of the training and planning requirements.  There is a 30-day window to implemented most of the employee training requirements, and a 60-day window for certain workplaces to establish written infectious disease preparedness and response plans and undertake training related to such plans.

The ETS will remain in place for six months or until the Governor’s COVID-19 State of Emergency expires or the temporary standards are replaced by the enactment of permanent standards, whichever occurs first.

What Else Employers Should Know

Finally, the ETS gives legal protections to workers who raise reasonable concerns about infection control to their employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social or any other media.  The ETS also prohibits employers from discharging or discriminating against a worker because the employee exercised rights under the standard or “blew the whistle” on violations of the standard.

Employers must allow employees to wear their own personal protective equipment, including a respirator, face shield, gloves, or face covering if the equipment is not already provided by the employer and it does not create a greater hazard to the employee or create a serious hazard for other employees. Additionally, nothing in the standard limits an employee from refusing to perform work or to enter a location that the employee feels is unsafe.

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Virginia employers who are unsure about compliance with these new rules should consult with experienced Virginia employment counsel to learn how to best conform their business practices to the new standard.  Should you have any questions about these new requirements for Virginia employers, DiMuroGinsberg’s employment law attorneys are here to help.