Virginia Adopts First COVID-19 Workplace Safety Standard: Requirements for Hazards or Job Tasks Classified as “Very High” or “High” Exposure Risk

In the first, we summarized the standard’s general employer mandates. In the second, we covered infectious disease preparedness and response plans that the standard requires of covered employers with hazards or job tasks classified as “very high,” “high,” or “medium” exposure risk. In the third, we discussed the standard’s requirement that “very high,” “high,” and “medium” exposure risk employers train employees on the hazards and characteristics of the SARS-CoV-2 virus and COVID-19 disease.

Today, we focus on additional requirements applicable to employers with hazards or job tasks classified as “very high” or “high,” defined here.

In addition to developing and implementing an infectious disease preparedness and response plan, the standard requires employers in these categories to implement several engineering controls, administrative controls, and work practices, as well as policies regarding personal protective equipment (PPE).

Required Engineering Controls

Employers with “very high” or “high” exposure risk job tasks must implement the following engineering controls to minimize the workplace spread of COVID-19:

• Healthcare facilities and other places of employment treating, caring for, or housing people known or suspected to be infected with the SARS-Cov-2 virus must install appropriate air-handling systems and ensure that they are (a) maintained in accordance with the manufacturer’s instructions; and (b) comply with the minimum American National Standards Institute (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2 (ASHRAE 2019a, 2019b), which include requirements for outdoor air ventilation in most residential and nonresidential spaces, and ANSI/ASHRAE/ASHE Standard 170 (ASHRAE 2017a), which covers outdoor and total air ventilation in healthcare facilities.

• All other “very high” or “high” risk employers do not have to install air-handling systems, but must ensure that air-handling systems already in place are appropriate to address the SARS-Cov-2 virus and COVID-19 disease-related hazards and job tasks that occur at the workplace, are maintained in accordance with the manufacturer’s instructions, and comply with ANSI/ASHRAE Standards 62.1 and 62.2, and ANSI/ASHRAE/ASHE Standard 170, if applicable.

• Hospitalized patients known or suspected to be infected with the SARS-Cov-2 virus must, where feasible and available, be placed in an airborne infection isolation room (AIIR).

• AIIR rooms when available must be used for performing aerosol-generating procedures on patients known or suspected to be infected with the SARS-CoV-2 virus.

• For postmortem activities, employers must use autopsy suites or other similar isolation facilities when performing aerosol-generating procedures on the bodies of decedents known or suspected to be infected with the SARS-CoV-2 virus at the time of their death.

• Employers must use special precautions associated with Biosafety Level 3 (BSL-3), as defined by the U.S. Department of Health and Human Services Publication No. (CDC) 21-1112 “Biosafety in Microbiological and Biomedical Laboratories” (Dec. 2009) when handling specimens from people known or suspected to be infected with the SARS-CoV-2 virus.

• To the extent feasible, employers must install physical barriers (e.g., clear plastic sneeze guards, etc.), where such barriers will aid in mitigating the spread of SARS-CoV-2 and COVID-19 virus transmission.

Required Administrative and Work Practice Controls

In addition to the engineering controls described above, employers with “very high” and “high” risk job tasks must implement the following administrative and work practice controls:

• Before beginning each work shift, prescreening or surveying must be used to verify that each covered employee has no COVID-19 signs or symptoms.

• If working in a healthcare facility, employers must follow existing guidelines and facility standards of practice for identifying and isolating infected people and for protecting employees.

• Employers must limit non-employee access to the workplace or restrict access to only certain workplace areas to reduce the risk of exposure. An employer’s compliance with occupancy limits contained in any applicable Virginia executive order or order of public health emergency will constitute compliance with the requirements of this paragraph.

• Employers must post signs requesting patients and family members to immediately report symptoms of respiratory illness on arrival at the healthcare facility and use disposable face coverings.

• Employers must offer enhanced medical monitoring of employees during COVID-19 outbreaks.

• Employers must give all employees job-specific education and training on preventing COVID-19 transmission, including initial and routine/refresher training, as described in our prior alert. 

• To the extent feasible, employers must ensure that psychological and behavioral support is available to address employee stress at no cost to the employee.

• In health care settings, employers must provide alcohol-based hand sanitizers containing at least 60% ethanol or 70% isopropanol to employees at fixed work sites, and to emergency responders and other personnel for decontamination in the field when working away from fixed work sites.

• Employers must provide face coverings to non-employees suspected to be infected with SARS-CoV-2 to contain respiratory secretions until they are able to leave the site (i.e., for medical evaluation/care or to return home).

• Where feasible, employers must implement flexible worksites (e.g., telework), implement flexible work hours (e.g., staggered shifts), increase physical distancing between employees and between employees and other people to six feet, implement flexible meeting and travel options (e.g., telephone or video conferencing, or postponing non-essential travel), deliver services remotely (e.g., telemedicine), and deliver products through curbside pick-up.

Required Personal Protective Equipment

“Very high” and “high” risk employers not otherwise covered by the Virginia Occupational Safety and Health Standards for General Industry (Part 1910) must comply with the following requirements for a SARS-CoV-2 virus and COVID-19 disease hazard assessment, and PPE selection:

• Employers must assess the workplace to determine if SARS-CoV-2 virus or COVID-19 disease hazards or job tasks are present, or are likely to be present, which necessitate the use of PPE. The employer must provide for employee and employee representative involvement in the assessment process.

• If such hazards or job tasks are present, or likely to be present, employers must (i) select and have each affected employee use the types of PPE that will protect them from the SARS-CoV-2 virus or COVID-19 disease hazards identified in the hazard assessment; (ii) communicate selection decisions to each affected employee; and (iii) select PPE that properly fits each affected employee.

• Employers must complete a written certification that the workplace hazard assessment has been performed, which must identify the workplace evaluated, the person completing the certification, and the date(s) of the hazard assessment.

• Unless specifically addressed by an industry-specific standard applicable to the employer and providing for PPE protections to employees from the SARS-COV-2 virus or COVID-19 disease (e.g., Parts 1926, 1928, 1915, 1917, or 1918), the requirements of §§1910.132 (General requirements) and 1910.134 (Respiratory protection) apply to all employers for that purpose.

• Where employees are required to use a respirator, employers must implement a respiratory protection program in accordance with § 1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m).

• Unless contraindicated by the employer’s hazard assessment, employees classified as “very high” or “high” exposure risk must be provided with and wear gloves, a gown, a face shield or goggles, and a respirator when in contact with or inside six feet of patients or other people known to be, or suspected of being, infected with SARS-CoV-2. Where indicated by the hazard assessment, such employees must also be provided with and wear a surgical/medical procedure mask. Gowns must be large enough to cover the areas requiring protection.

Employers must also provide extensive training which we discussed in a prior alert.

Employers must comply with these requirements by the standard’s effective date, which Virginia’s Department of Labor and Industry expects will occur during the week of July 27, 2020. Preparing will take time and effort. So, employers are well-advised to promptly get underway, in consultation with their counsel and safety experts.