Virginia Adopts First COVID-19 Workplace Safety Standard

Northam said, “Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic.” He continued, “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.”

Brian Ball, Virginia’s Secretary of Commerce and Trade, echoed that view stating, “Keeping Virginia’s economy moving forward has never been more critical, and keeping our workers safe is critical to sustained economic recovery. COVID-19 is, unfortunately, going to continue impacting our everyday lives, and these regulations will provide for more reliable, more predictable workplaces for Virginians.”

The new emergency, temporary standard contains:

• Mandates applicable to all employers subject to Virginia’s Occupational Safety and Health statute;
• Some limited reporting requirements for building owners; 
• And additional mandates applicable to those employers with hazards or job tasks classified as “very high,” “high,” or “medium” exposure risk to known or suspected sources of the SARS-CoV-2 virus.

This Alert highlights only key generally applicable mandates. The other mandates are too extensive to cover in a single Alert, but readers are welcome to contact the authors to discuss them.

Mandates Applicable to All Employers

Exposure Assessment and Determination, Notification Requirements, and Employee Access to Exposure and Medical Records.

• All employers must assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Employers must classify each job task according to the hazards to which employees are potentially exposed and ensure compliance with the standard’s applicable sections.
• Employers must educate employees about how to self-monitor for COVID-19 signs and symptoms and encourage employees to do so.
• Employers may not use serological test results (COVID-19 antibody tests) to make decisions about returning to work employees, who were previously classified as known or suspected to be infected with the SARS-CoV-2 virus.
• Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19, and an alternative diagnosis has been made (e.g., the employee tested positive for influenza). Employers must designate those individuals “suspected to be infected with SARSCoV-2 virus”.
• Employers must not permit employees, or other individuals, known or suspected to be infected with SARS-CoV-2 virus to report to or remain at the worksite or engage in work at a customer or client location until the employees or other individuals are cleared to return to work.
• To the extent feasible and lawful, employers must ensure that their sick-leave policies are flexible and consistent with public health guidance and that employees are aware of those policies.
• Employers must confer with subcontractors and companies that provide contract or temporary employees about the importance of employees and others who are known or suspected to be infected with the SARS-CoV-2 virus to stay at home.
• Contractors, subcontractors, and temporary employees known or suspected to be infected with the SARS-CoV-2 virus must not report to or be allowed to remain at the worksite until they are cleared to return to work.
• Subcontractors must not allow their employees who are known or suspected to be infected with the SARS-CoV-2 virus employees to report to or remain at work or on a job site until they are cleared to return to work.
• To the extent that the law, including HIPAA permits, employers must establish a system to receive reports of positive employee, contract employee, and temporary employee SARS-CoV-2 tests, within 14 days from the test date.
• Employers must notify (a) their employees who may have been exposed, within 24 hours of discovery of their possible exposure, while keeping confidential the identity of the possibly infected individual; (b) other employers whose employees were present at the worksite during the same time period; (c) the building/facility owner; and (d) the Virginia Department of Labor and Industry within 24 hours of the discovery of three (3) or more employees present at the worksite within a 14-day period testing positive for SARS-CoV-2 virus during that period.
• Employers must ensure employee access to their own SARS-CoV-2 virus and COVID-19 disease-related exposure and medical records in accordance with applicable standards.
• Building/facility owners will require all employer tenants to notify them of any employee or resident who tests positive, which will allow for sanitizing any common areas. The building/facility owners will also notify all employer tenants of the floor on or area in which “the case was discovered.”

Return to Work Protocols

Employers must develop and implement policies and procedures for employees known or suspected to be infected with the SARS-CoV-2 virus to return to work using either a symptom-based or test-based strategy.

While employers may rely on other reasonable options, a policy that involves consultation with appropriate healthcare professionals concerning when an employee has satisfied the symptoms-based strategy requirements suffices.

For employees known or suspected to be infected with the SARS-CoV-2 virus, a symptom-based strategy precludes an employee from returning to work until (a) at least three days (72 hours) have passed since recovery, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and (b) at least ten days have passed since symptoms first appeared.

A test-based strategy precludes an employee from returning to work until resolution of fever without the use of fever-reducing medications, and improvement in respiratory symptoms (e.g., cough, shortness of breath), plus twice testing negative for the presence of SARS-CoV-2.

Employers must develop and implement policies and procedures for asymptomatic employees known to be infected with SARS-CoV-2 to return to work using either a time-based or test-based strategy.

A time-based strategy precludes an employee from returning to work for at least ten days after the employee’s first positive COVID-19 diagnostic test if the employee did not later develop symptoms. If the employee developed symptoms, then the employer must use a symptom- or test-based strategy.

A test-based strategy precludes an employee from returning to work until the employee has twice tested negative for the presence of SARS-CoV-2.

Employers may not require employees to pay for the tests.

Physical Distancing

Employers must ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property, including policies and procedures that:

• Use verbal announcements, signs, or visual cues to promote physical distancing; and
• Decrease worksite density by limiting non-employee access to the worksite or restrict access to only certain workplace areas to reduce the risk of exposure.

Employers must close or control access to common areas, breakrooms, and lunchrooms.

If an employer’s work or work area does not allow employees to consume meals in the employee’s workspace while observing physical distancing, an employer may designate, reconfigure, and authorize alternate usage of spaces where employees congregate, including lunch and break rooms, locker rooms, time clocks, etc., with controlled access, subject to the following conditions:

• At the entrance(s) of the designated common area or room, the employer must clearly post the policy limiting occupancy and requirement for physical distancing, hand washing/hand sanitizing, and cleaning and disinfecting shared surfaces.
• The employer must limit occupancy of the designated common area or room so that occupants can maintain physical distancing from each other. The employer shall enforce the occupancy limit.
• Employees must be required to clean and disinfect the immediate area in which they were located before departing, or the employer may provide for cleaning and disinfecting of the common area or room at regular intervals throughout the day, and between shifts of employees using the same common area or room (i.e., where an employee or groups of employees have a designated lunch period and the common area or room can be cleaned in between occupancies).

Employers must make handwashing facilities, and where feasible hand sanitizer, available to employees.

When multiple employees occupy a vehicle for work purposes, the employer must ensure compliance with respiratory protection and personal protective equipment standards applicable to the employer’s industry.

Sanitation and Disinfection Protocols

• Employees who interact with customers, the public, contractors, or others, shall be given and immediately use supplies to clean and disinfectant surfaces contacted during the interaction where there is the potential for employee exposure to the SARS-CoV-2 virus.
• Employers must clean and disinfect areas that employees or other individuals known or suspected to be infected with the SARS-CoV-2 virus accessed or in which they worked, before allowing other employees access to those areas.
• Where feasible, employers should wait 24 hours before cleaning and disinfecting those areas. This requirement does not apply if the areas have been unoccupied for seven or more days.
• Employers must clean and disinfect all common spaces, including bathrooms, frequently touched surfaces, and doors at least at the end of each shift.
• Employers must clean and disinfect all shared tools, equipment, workspaces, and vehicles before they are transferred from one employee to another.
• Employers must ensure that cleaning and disinfecting products are readily available to employees to accomplish the required cleaning and disinfecting. Also, employers must ensure that employees use only EPA-approved disinfecting chemicals and products.
• For the duration of work, employers must allow employees easy and frequent access to, plus permission to use, soap and water, and hand sanitizer where feasible. 
• Where feasible, employers must give hand sanitizer to employees assigned to a workstation where job tasks require frequent interaction within six feet with other individuals.
• Where feasible, employers must give hand sanitizer to mobile crews, for the duration of work at a worksite and shall have transportation immediately available to nearby toilet facilities and handwashing facilities that meet Virginia Occupational Safety and Health sanitation laws, standards, and regulations.
• When engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection, employers must provide personal protective equipment, including respiratory protection equipment, to employees and ensure its proper use in accordance with applicable Virginia Occupational Safety and Health laws, standards, and regulations.

Prohibition Against Discrimination and Retaliation

The standard prohibits discrimination against employees for exercising rights, for themselves or others. Likewise, the standard makes it unlawful to discharge or in any way discriminate against employees who voluntarily provide and wear their own personal protective equipment, including but not limited to a respirator, face shield, gloves, or face coverings if the employer does not provide the equipment and it does not create a greater hazard to the employee, or create a serious hazard for other employees.

No person may discharge or in any way discriminate against an employee who raises a reasonable concern 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 and nothing in the standard prohibits employees from refusing to do work or enter a location that they reasonably feel is unsafe.

The price of running afoul the law could be significant: Up to $13,000 in penalties for each non-willful violation; and up to $130,000 in penalties for willful and repeated violations. Thus, to promote employee health, and conserve resources, employers should carefully review the standard with its counsel and safety experts and implement a plan for compliance.

Virginia’s Department of Labor and Industry expects the standard to take effect during the week of July 27, 2020, when it is published in a Richmond newspaper of general circulation. Generally, emergency temporary standards expire within six months from their effective date, unless public rulemaking extends them.