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Virginia enacts COVID-19 occupational safety rules

Jul 20, 2020

Virginia is now the first state in the nation to enact mandatory occupational safety standards regarding COVID-19. The Virginia Department of Labor and Industry’s health and safety board voted 9-2 on July 15 to adopt an “Emergency Temporary Standard” which requires employers to implement measures to protect employees from COVID-19. Virginia employers would face maximum civil penalties ranging from $13,494 per violation to $134,937 per violation of the Emergency Temporary Standard which could take effect as soon as July 27, 2020.

As Virginia employers evaluate the multitude of requirements included in the Emergency Temporary Standard, it is critical to begin assessing current workplace policies in preparation for implementation of more stringent health and safety protocols relative to COVID-19.

The Emergency Temporary Standard was drafted by the Department at the direction of Governor Ralph Northam, partially in response to a perceived lack of enforcement of federal workplace safety standards by the federal Occupational Safety and Health Administration.

Exposure Risk Level

To implement the infection control requirements enacted by the Emergency Temporary Standard, employers will be required to classify the risk in their workplaces of contracting and spreading COVID-19 (the “Exposure Risk Level”). The directive specifies four Exposure Risk levels for assessment: “Very High;” “High;” “Medium” and “Low.” A workplace may qualify under more than one risk category, based on the nature of workplace hazards and the job tasks performed. The Exposure Risk Level(s) applicable to an employer’s workplace determine the necessary safety standards that must be implemented to “control, prevent, and mitigate the spread of COVID-19 to and among employees and employers.”

Factors used to determine Exposure Risk Level include:

• Job tasks being undertaken;
• Work environment (e.g., indoors or outdoors);
• The known or suspected presence of COVID-19 or a person with COVID-19 in the workplace;
• The number of employees and/or other persons in relation to the work area;
• The working distance between employees; and
• The duration and frequency of employee exposure through contact within six feet of other employees and persons, including shift work exceeding eight hours per day.

Very High Exposure Risk Levels apply to those job tasks or places of employment with high potential for employee exposure of known or suspected sources of COVID-19, including but not limited to specific medical, postmortem or laboratory procedures.

High Exposure Risk Levels apply to those job tasks or places of employment with high potential for COVID-19 exposure within six feet of known or suspected sources of COVID-19 which includes physical and mental healthcare workers, medical transport services, first responders and mortuary services.

Medium Exposure Risk Levels apply to those job tasks or places of employment that require more than minimal occupational contact inside of six feet with other employees, other persons or members of the general public who may be infected with COVID-19 but are not known to be carriers. Medium risk employers may include, but are not limited to, poultry, meat and seafood processing, agricultural labor, transportation services, educational settings, bars and restaurants, personal care businesses, gyms, exercise facilities and spas, and venues for sports, entertainment and other forms of mass gathering.

Low Exposure Risk Levels apply to those job tasks or places of employment that do not require contact within six feet with persons known or suspected to be infected with COVID-19, nor contact within six feet of other employees, other persons or members of the general public.

In addition to universal employer mandates, Very High Risk, High Risk, and Medium Risk employers will be required to implement additional workplace safety measures, depending on the applicable level of exposure risk.

Mandatory Requirements for All Employers

Regardless of the Exposure Risk Level, all employers within the Commonwealth will be required to:

• Assess the workplace for hazards and job tasks that can potentially expose employees to COVID-19 and classify employees and job tasks according to Exposure Risk Levels;
• Inform employees of the methods to self-monitor for signs and symptoms of COVID-19 and encourage them to do so if they suspect possible exposure or are experiencing signs of an oncoming illness;
• Certify that employees and others known or suspected to have COVID-19 are not allowed to report to or remain at the work site until they are cleared to return to work;
• Ensure that sick leave policies, including the Families First Coronavirus Response Act, are in place and that employees are aware of them;
• Inform all subcontractors and companies that provide the employer with contract or temporary labor that any worker suspected or confirmed to have COVID-19 may not report to the work site until cleared to return;
• Notify, within 24 hours and without disclosing identifying information, its employees and other employers who were present on the worksite when an employee, a contract worker, or a temporary employee, who was present in the place of employment, has tested positive for COVID-19 when that individual was in the workplace within the previous 14 days of the positive test result;
• Ensure that employees have access to COVID-19-related exposure and medical records in accordance with industry specific standards;
• Develop and implement policies for employees known or suspected of having COVID-19, including asymptomatic employees, to return to work using either a symptom-based or test-based strategy, depending on local healthcare and testing circumstances;
• Ensure that employees observe social distancing while on the job and during paid breaks on the employer’s property;
• Limit or close access to common areas, break areas or lunchrooms;
• Where multiple employees are in a vehicle for work purposes, ensure compliance with respiratory and personal protective equipment standards applicable to the industry;
• Where the nature of an employee’s work or the work area does not allow them to observe social distancing, ensure compliance with respiratory and personal protective equipment standards for the industry;
• Comply with the Virginia Occupational Safety and Health standards for sanitizing and disinfecting the workplace based on industry-specific standards; and
• Handle requests for religious waivers from the required use of respirators, surgical/medical procedure masks, or face coverings in accordance with the requirements of applicable federal and state law, standards, regulations and the U.S. and Virginia Constitutions, after consultation with the Office of the Attorney General.

Enforcement Penalties

The Virginia Occupational Safety and Health Program is responsible for enforcing compliance with the Emergency Temporary Standard in accordance with escalating levels of violation, ranging from “Other-Than-Serious” to “Willful.” The maximum civil penalty that may be assessed against a Virginia employer ranges from $13,494 per violation to $134,937 per violation.

Anti-Discrimination Provisions

In addition to health and safety standards, the Emergency Temporary Standard protects employees against retaliatory discharge or discrimination for rights asserted in accordance with the directive. The provisions also specify that an employer may not discharge or discriminate against any employee who voluntarily provides and wears his or her own personal protective equipment including, but not limited to a respirator, face mask, face shield or gloves. Further, employers are prohibited from discharging or discriminating against any employee who raises a reasonable concern about infection control related to COVID-19 with the employer, the employer’s agent or a government agency.

Effective Date

The Emergency Temporary Standard will take effect upon publication in a newspaper of general circulation in the City of Richmond, which the department anticipates will occur the week of July 27. The regulations will remain in place for six months, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.

Waller will continue to provide updates on to Virginia’s Emergency Temporary Standard as well as the development of state-specific COVID-19 occupational safety requirements throughout the country.