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Employment Law Alert – July 30, 2020

By Labor & Employment

Virginia Issues COVID-19 Workplace Safety Rules

To enhance workplace safety during the COVID-19 pandemic, Governor Northam directed that Virginia become the first state in the nation to issue workplace safety standards applicable to all employers. The Virginia Department of Labor and Industry published an Emergency Temporary Standard (ETS) which became effective on July 27, 2020, and which requires employee training to be completed no later than August 26.

The ETS requirements vary based upon the hazard classification of the employees in every fixed or other designated workplace. The ETS is not directed toward work performed in a person’s home or when an employee is working away from an employer-controlled or shared worksite. All employers will be required to assess and classify the COVID-19 risk for each of their positions. Classifications are “very high,” “high,” “medium,” or “lower” depending on the risk of employee exposure to COVID-19.

It is possible for a single employer to employ staff with different risk hazard classifications at various sites or even at the same site. Each employer should carefully review the definitions of each risk category as set out in the ETS and assign a category to each of its positions. Violations of the ETS could subject an employer to a citation with penalties that range from zero to likely several hundred dollars for each violation determined as Other Than Serious, and up to $13,494 for each Serious violation. Repeat or willful violations could result in up to ten times that, or $134,943. In very rare cases, such as a violation that is both repeat and willful, a criminal penalty may apply.

The ETS imposes Mandatory Requirements for All Employers. These include:

  1. Exposure Assessment and Notice to Affected Persons
    • Establish policies that respond to and comply with the ETS.
    • Assess the workplace for hazards and assign a risk classification status for each individual position (very high, high, medium, or lower).
    • Create reporting processes for employees experiencing COVID-19 symptoms.
      • Those suspected to be infected must leave work and cannot return until they have been cleared; although they should be allowed to work remotely while in isolation if possible.
      • Leave policies must be flexible and adhere to the Families First Coronavirus Response Act as well as to public health guidance.
    • Subcontractors must be made aware of safety and reporting rules. They are to be treated just like employees in terms of suspected and known cases of COVID-19.
    • Establish a HIPAA compliant system to receive positive COVID-19 test reports from employees and contractors.
    • Anyone who was at an employer’s worksite and who may have been exposed to the confirmed positive person within the previous 14 days must be notified within 24 hours of receiving a positive report.
    • The name of the person who tested positive should not be disclosed except to those with a strict need to know. Within 24 hours of receiving a positive report, a building owner, landlord or real estate management firm must also be notified of a positive report.
    • Within 24 hours of receiving a positive test report, the Virginia Department of Health must be notified, and if there are three or more positive reports, DOLI also must be notified.
    • Identifying persons who may have been exposed will be dependent on the frequency, duration and proximity of such persons to a known COVID-19 positive person.
  2. Return to Work
    • Establish a policy to bring employees who tested positive back to work in one of the following ways:
      • Symptom-based – At least 10 days have passed since symptoms first appeared, and there have been no respiratory symptoms or fever for at least 3 days (72 hours) without the use of fever-reducing medication.
      • Test-based – Collect at least 2 negative tests at least 24 hours apart, and verify there have been no respiratory symptoms or fever for at least 3 days (72 hours) without the use of fever-reducing medication. Note that employers cannot require employees to pay for testing.
  3. Ensure Physical Distancing
    • Use announcements, signs and visual cues such as ground markings to encourage physical distancing of at least six feet.
    • Decrease worksite density by limiting visitors or promoting telework.
    • Comply with executive and public health orders applicable to occupancy limits.
  4. Access to Common Areas
    • Close or control access to common areas such as lunchrooms and break rooms.
    • Ensure adequate handwashing/sanitizing facilities are available.
    • Provide routine cleaning of the space at regular intervals.
  5. Provide appropriate Personal Protective Equipment (PPE) when multiple employees occupy a single vehicle for work purposes.
  6. Ensure compliance with Virginia Executive Orders or any Order of Public Health Emergency.
  7. Provide appropriate PPE when a work area cannot accommodate physical distancing.
  8. Employees may be exempt from wearing a mask due to health or safety concerns.
  9. Employees may request religious waivers related to wearing masks from DOLI.
  10. Provide effective and frequent sanitation and disinfecting.

Special Requirements for Hazards or Job Tasks Classified as “Very High,” “High,” or “Medium” Exposure Risk

  1. Additional measures are required for very high and high exposure risk workplaces including engineering and work practice controls such as barriers.
  2. Administrative controls are required such as pre-screening of employees for COVID-19 symptoms, restricting non-employee access, and proper distancing and warnings.
  3. PPE appropriate to the specific task must be provided.
  4. Provide job-specific necessary training.

Training

  1. Training is required for all employees with “very high,” “high,” and “medium” exposure classifications and is encouraged for all employees. At a minimum, meaningful COVID-19 information must be provided.
  2. Training should include identifying characteristics and transmission methods of COVID-19, symptoms, and the time frames for appearance, the possible effect of underlying health conditions, safe practices such as physical distancing, wearing face coverings, disinfecting, PPE requirements and the ETS anti-discrimination provisions.
  3. Written certification of training is required and must be retained.
  4. Retraining is required when changes are made to the workplace or job tasks and when employees display a need for retraining.

Anti‐Discrimination Provision

Discrimination against an employee for exercising rights under the ETS is prohibited. Employees may expect adherence to the ETS as well as raise concerns without fear of discipline. Employees may also refuse to work if they feel unsafe and discuss their concerns with their supervisors or managers. Employees may also provide and wear their own PPE if it does not create a greater hazard for themselves or their coworkers.

FYI

For further information or assistance in developing a written policy or a compliance plan, employers may contact any member of the K&C Employment Team.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2020.