Virginia Adopts Emergency Temporary Standard to Address COVID-19 in the Workplace

The Commonwealth of Virginia recently became the first state in the nation to enact enforceable workplace safety standards to address the risks of coronavirus (COVID-19).

The Virginia Health and Safety Codes Board voted on July 15 to finalize a regulation that will be enforced by the Virginia Occupational Safety and Health (VOSH) program of the Virginia Department of Labor and Industry (DOLI): Section 16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‐19.

The standard will apply to most private employers in Virginia and will become effective upon final publication, which is expected to occur during the week of July 27, 2020. It will expire within six months of publication, or upon the expiration of the governor’s state of emergency declaration, or the enactment of a permanent standard.

To date, the federal Occupational Health and Safety Administration (OSHA) has not adopted any new nationwide standards related to COVID-19. In the absence of such guidance, Virginia Governor Ralph Northam touted Virginia’s leading efforts in “creating the nation’s enforceable workplace safety requirements.”

In many ways, Virginia’s new standard tracks existing guidance from both OSHA and the Centers for Disease Control and Prevention (CDC). In other ways, the standard is more expansive. Recognizing this interplay, the Virginia standard expressly confirms that if an employer “actually” complies with CDC guidelines that provide equivalent or greater protection than the Virginia standard, those actions will be deemed compliant with the standard. If an employer follows a less stringent CDC guideline that falls short of the Virginia standard, then the employer’s actions will not necessarily be found compliant with Virginia’s rules, but may be considered as evidence of good faith in any potential enforcement action. Compliance on paper is not enough—to benefit from this provision, employers must show on-the-ground execution and enforcement of COVID-19 policies based on CDC guidelines.

In sum, Virginia employers should ensure that they familiarize themselves with and develop protocols to comply with the new Virginia standard, while continuing to monitor and adhere to related guidance from OSHA, the CDC, and other federal, state, and local officials.

Assessing Risk Level and Actions to Be Taken

The standard imposes different sets of requirements on employers depending on the exposure risk levels their employees may face, including “very high,” “high,” “medium,” and “lower.” The standard contemplates that these risk levels are task specific, such that the same employee could theoretically be classified as both “high” and “lower,” depending on the nature of the work performed throughout the workday.

Accordingly, employers will need to carefully evaluate the job duties of their workforce to develop proper classifications of their employees. Although the standard provides some clear indicators—for instance, an “office building setting” is considered to fall within the “lower” classification—for many employers this will be a context-specific assessment that may vary from one worksite to another and possibly from one task to another. The higher the risk, the stricter (and more burdensome) the standards. 

General Requirements for All Virginia Employers

In addition to risk-based requirements for different job tasks and hazards, the standard imposes baseline requirements for all Virginia employers. These fall into several categories.

Exposure Assessment and Notification Requirements

• Employers must assess their workplaces for hazards that could potentially expose employees to COVID-19, and classify each job task based on the exposure risk levels of “very high,” “high,” “medium,” and “lower.”
• Employees must inform employees to self-monitor for symptoms, and employers must provide information about how to do so.
• Employers are prohibited from relying on antibody tests to make decisions about returning employees to work.
• Employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19; such employees will be designated as “suspected to have COVID-19.”
• Employers must ensure that employees who are “suspected” or confirmed to have COVID-19 do not return to the workplace until they have been cleared to do so.
• Employers must ensure sick leave policies are “flexible and consistent with public health guidance” and communicated to employees.
• Employers must coordinate with subcontractors and/or companies that provide contract or temporary employees to prohibit individuals who are known or suspected to have COVID-19 from the worksite.
• Employers must establish a system for the employer to receive reports of positive COVID-19 tests from employees, contractors, or temporary employees who were present at the worksite within 14 days of having a positive test. Employers must then notify employees who may have been exposed to that person, other employers with employees present at the same worksite, and the building or facility manager, and within 24 hours the Virginia Department of Health. If more than three positive cases are discovered in a 14-day period, the Virginia Department of Labor and Industry must be notified.
• Employers must ensure that employees can access their own COVID-19 exposure and medical records, if any.

Return to Work, Social Distancing, and Sanitization Requirements

• Employers must implement policies and procedures for employees returning to work after a positive test or a “suspected” case of COVID-19. For symptomatic employees, these policies can rely on symptom-based or test-based strategies; for asymptomatic employees, these policies can rely on time-based or test-based strategies (each strategy is defined in the Virginia standard). If test-based strategies are used, the employer must pay for the cost of the test.
• Employers must ensure physical distancing is maintained through signage, announcements, decreased worksite density, or other means.
• Employers must limit occupancy of common spaces used by employees to ensure that physical distancing can be maintained during breaks. Common spaces must be cleaned and disinfected throughout the day.
• Employers must comply with respiratory protection and personal protective equipment (PPE) standards where distancing cannot be maintained (including in vehicles), subject to special provisions for medical accommodations and religious objections.
• Employers must follow cleaning procedures detailed in the standard, particularly for high-touch surfaces, doors, bathrooms, common spaces, tools, equipment, workspaces, and vehicles.
• Employers must ensure that any area where an employee who has tested positive or is suspected positive has been cleaned before other employees use that area (after waiting 24 hours “where feasible”).
• Employers must provide cleaning and disinfection products that meet EPA standards for COVID-19 for employees to use to clean the worksite, and train employees on how to use these products and any associated hazards.
• Employers must ensure that employees have easy and frequent access to use soap and water for handwashing, or hand sanitizer where feasible.

Additional Considerations for Employers with Higher Exposure

In addition to the general requirements summarized above, employers with hazards or job tasks that are classified as “very high,” “high,” or “medium” may be obligated to adhere to additional requirements under the standard:

• Ensuring an appropriate ventilation and air-handing system (specifics depend on industry and risk level).
• Installing physical barriers like clear plastic and sneeze guards.
• Prescreening or surveying employees for signs or symptoms of COVID-19 before each work shift.
• Providing and requiring face coverings where employees cannot feasibly practice physical distancing or for public-facing positions.
• Providing and requiring other PPE identified during the employer’s hazard assessment (such as respirators).
• Creating a written infectious disease preparedness and response plan.

Training Requirements for Employers

If an employer determines that some of its workforce faces “very high,” “high,” or “medium” exposure risk to COVID-19, the employer must be prepared to train employees on the requirements of the Virginia standard or the CDC and/or OSHA guidelines the employer is following in lieu of any provision of the standard; the employer’s infectious disease preparedness and response plan; signs and symptoms of COVID-19; risk factors of COVID-19 to individuals with health conditions; transmission of the virus (including by pre-symptomatic and asymptomatic individuals); safety and health work procedures (including the use of PPE); and the antidiscrimination provisions in the standard.

According to the most recent guidance, employers will have 60 days after the Virginia standard becomes effective to train employees under this section of the standard. Employers must maintain certification records of employee trainings per this requirement.

Employers with hazards or job tasks classified at “lower” risk must provide written information to employees on the potential hazards and symptoms of COVID-19 and measures to minimize exposure.

What Should Virginia Employers Do Now?

With the passage of this standard, employers in Virginia should begin preparing a plan to comply with these new workplace safety standards. Employers should immediately do the following:

• Evaluate the potential hazards for COVID-19 exposure that employees face in performing different workplace tasks and classify those tasks in accordance with the standard.
• Review existing policies related to COVID-19 and revise and update those policies as necessary, including with respect to employee reporting of potential COVID-19 symptoms, social distancing, workplace cleaning and sanitization, and the like.
• Evaluate and modify workplace configurations to ensure compliance with the regulations, including areas like breakrooms and common spaces.
• For employers that may have employees performing tasks in the “medium,” “high,” and/or “very high” risk categories, ensure the availability of necessary PPE, develop an infectious disease plan, and create and conduct necessary training within the timeframes established in the standard.
• Employers should document all changes to plans, policies, and procedures taken in order to comply with the standard.

Even employers outside of Virginia may consider implementing some of the requirements set forth in the standard as well, albeit on a voluntary basis.

Many of the mandates in Virginia’s emergency standard mirror existing guidance from the federal OSHA and CDC. However, failing to follow the standard where it is more expansive than CDC guidelines may result in an enforcement action, and possible penalties for noncompliance. Further, although Virginia is the first state to pass enforceable workplace standards, other states may soon follow suit.

Return to Work Resources

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Los Angeles
Jason S. Mills

Washington DC
Sharon P. Masling
Jonathan L. Snare