On July 27, 2020, the Virginia Department of Labor and Industry (DOLI) adopted a first-of-its-kind statewide regulation mandating all employers adopt varying levels of safeguards to combat the COVID-19 pandemic. In this advisory, we will address a number of the compliance questions employers face regarding the Virginia Occupational Safety and Health (VOSH) Emergency Temporary Standard (ETS) and outline the rule’s more prominent features. While in many respects the ETS adopts existing CDC/OSHA guidance and Governor Northam’s executive orders, there are important distinctions. The ETS is more than 40 pages, but we will address its core provisions, which require employers to engage in the following:
- Workplace Assessment. Employers must conduct a COVID-19 workplace risk assessment, documented in writing, which grades employee job tasks and exposure to hazards on a scale of “lower” to “very high” risk of infection and employers must adopt mitigation strategies commensurate with the risk level.
- COVID-19 Screening and Rapid Notification. Employers must adopt a system for receiving reports of symptoms and test results of COVID-19 from employees and others in the workplace, must adopt a rapid notification procedure for informing interested parties after discovery of positive test results, and must adopt a return-to-work strategy to ensure employees are no longer infectious before returning to the workplace.
- Disinfection/Sanitation Requirements. Employers must enforce physical distancing, sanitation, and disinfection policies.
- Restricting Access to the Workplace. Employers must restrict access to workplace areas to reduce the risk of COVID-19 transmission.
- Employee Training. Employers must train employees on COVID-19’s characteristics, means of transmission, etc.
- Infectious Disease Plans. Certain employers must prepare an infectious disease preparedness and response plan.
As described in further detail below, all employers are required to implement policies consistent with the above (although certain employers will not have to adopt an infectious disease preparedness and response plan). The degree of required workplace modifications, policies, and other compliance efforts will vary depending on the results of the employer’s risk assessment and the standards of the industry.
1. Employers Must Conduct a Workplace Risk Assessment
The regulatory requirements under the ETS are chiefly driven by the results of an employer-conducted risk assessment of the work environment. Employers must identify disease-related hazards present or risks in job tasks undertaken by employees at the place of employment, which takes into account the work environment, the number of employees in relation to the area of the workplace, the working distance between employees and other persons, the presence of persons known or suspected to be infected with COVID-19, and the duration and frequency of employee exposure through contact with other persons inside of six feet. In addition, the presence of hazards must be identified, including shared tools and workspaces, common rooms, and contact with contaminated surfaces. Based upon the results of the assessment, employees may have jobs falling along the following risk classifications:
- “Very High” pertains to high risk of exposure to COVID-19, and is primarily found in morgues or laboratory work environments.
- “High” pertains to the high risk for employee exposure inside of six feet with known or suspected sources of COVID-19, including persons known or suspected to be infected. This is primarily applicable to healthcare fields directly treating those infected with the disease.
- “Medium” pertains to work environments which require more than minimal occupational contact inside of six feet with others who may be infected with COVID-19, but are not known or suspected to be infected.
- “Lower” pertains to work environments requiring employees to have only minimum occupational contact with others inside of six feet.
Most employers will fall under a medium or lower risk classification.
Outside of health care or laboratory science work environments, most employers will find their workplace naturally falls into a medium or lower risk classification. The ETS identifies a number of industries that will generally fall within a medium risk level, including commercial transportation, on-campus educational settings, call centers, daycare, restaurants and bars, grocery stores, convenience stores, drug stores and pharmacies, construction settings, venues for sports and entertainment, gyms, and certain health care facilities where the work does not involve treating persons known or suspected to be infected with COVID-19. By contrast, a typical office setting is identified as an example of a lower risk work environment. However, what constitutes “minimal occupational contact” sufficient to satisfy the lower risk classification is not well defined.
Modifying the Work Environment to Lower the Risk Classification.
Employers may be able to reduce their risk classification by implementing workplace controls, where feasible, that reduce the potential for transmission of COVID-19. This will, in turn, reduce the regulatory burden of the ETS and increase the safety of the work environment. While requiring employees to wear a mask does not suffice to reach the “minimal occupational contact” threshold for lower risk under the ETS, other workplace modifications may be sufficient, including teleworking, implementing staggered working shifts, or erecting an impermeable surface between persons.
Employer Obligations for Employees with Medium Risk Classifications.
Many employers, particularly in consumer-facing businesses, will not be able to accomplish a “lower” risk classification even while implementing all feasible workplace controls and safeguards. Where employees are in a medium risk classification, employers must implement certain safeguards, where feasible, including the following:
- Pre-Shift Symptom Screening for signs or symptoms of COVID-19;
- Providing face coverings for those known or suspected to be infected, for temporary use while the person exits the working environment;
- Implementing flexible work hours and worksites (i.e., telework);
- Where the nature of the employee’s work or work area does not allow them to practice physical distancing, employers must provide respiratory protection and Personal Protective Equipment (PPE) applicable to its industry;
- Where feasible, employers must install physical barriers if it will aid in mitigation;
- Employers must assess the workplace for hazards present or are likely to be present which necessitate the use of PPE and solicit employee input in the risk assessment; and
- Employers must verify that workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated, the dates of the hazard assessment, the person certifying, and the document as a certification of hazard assessment.
While the above is a summary of only some of the requirements for employers with employees falling under a medium risk classification, the number and degree of ETS requirements on employers scale upwards as employees fall under high or very high risk classifications.
2. COVID-19 Symptom Reporting, Outbreak Notification, and Return to Work Policies
In addition to the risk assessment, the ETS requires employers to establish systems to encourage employee symptom reporting and procedures for rapid notification of interested parties after a COVID-19 outbreak, and systems for ensuring the safe return to work by previously infected employees, including the following:
- Establishing Systems for Receiving Reports of Positive COVID-19 Test Results.
- Employers must establish a system to receive reports of positive test rests by employees, subcontractors, and others who were present at the place of employment within 14 days preceding the date of positive test. They similarly must establish a system for receiving reports of employees with symptoms of COVID-19 where no other diagnosis has been made. Such persons must be restricted from returning to the place of work until cleared to return according to criteria described below.
- Rapid Notification Requirements.
- Within 24 hours after receiving a positive test result, employers must notify employees who may have been exposed, employers who had employees at that worksite during the preceding 14 days, the building/facility owner, and the Virginia Department of Health. Moreover, if three or more positive tests are reported during a 14-day period, employers must also report the matter to DOLI within 24 hours. This reporting must be accomplished while protecting the confidentiality of the infected person(s).
- Return to Work Policies.
- The ETS requires employers to develop policies and procedures for allowing employees known or suspected to be infected with COVID-19 to return to work, using a “test-based” or “symptom-based” strategy, according to criteria set forth in the ETS. If employers require employees to use a COVID-19 test before returning to work, employers are required to pay for the costs of the test.
3. Employers must enforce physical distancing, sanitation, and disinfection policies
The ETS establishes a variety of sanitation and disinfection requirements on employers, including the following:
- All common spaces, including bathrooms, frequently touched surfaces and doors, must be cleaned and disinfected at the end of each work shift, if not more frequently. All shared tools, equipment, workspaces, must be cleaned before transfer from one employee to another;
- Employees assigned to a workstation where job tasks require frequent interaction inside six feet with other persons must be provided with hand sanitizer where feasible at their workstation; and
- If controls are not feasible, or do not provide sufficient protection, employers shall provide PPE, including respiratory protective equipment.
4. Employers must restrict access to workplace areas to reduce the risk of COVID-19 transmission
Employers must control access to the work area to reduce the risk of infection. This may include closing off certain areas of the worksite to the public, ensuring employees engage in physical distancing while on the job and on paid breaks on employer’s property, and enforcing policies and procedures that promote physical distancing. The ETS recommends, if feasible, that lunch and other breaks are taken at the employee’s workspace if social distancing can be implemented there. If this is not feasible, at the entrance to the common area, the employer must post a policy limiting occupancy of the space, requiring physical distancing, requiring handwashing/sanitizing, and requiring cleaning and disinfecting shared surfaces. Employees must clean/disinfect the immediate area in which they were located prior to leaving. Finally, handwashing facilities and hand sanitizer (where feasible) must be made available to employees.
5. Employers must train employees on COVID-19’s characteristics, means of transmission, etc.
By August 26, 2020, employers will be required to train their employees on COVID-19 according to a detailed criteria specified in the ETS. If all of the employer’s employees are classified under a lower risk class, a more abbreviated training will be sufficient. However, if any employees are at risk levels medium or above, then all of the employees in the place of employment must receive the more intensive training.
6. Certain employers must prepare an infectious disease preparedness and response plan
On September 25, 2020, employers who have any hazards or job tasks classified in very high or high risk classifications, or who have any hazards or job tasks in medium risk classifications and employ 11 or more employees, must develop an infectious disease preparedness and response plan (a “Plan”). The Plan must be in writing and include the following:
- The Plan must designate the employee responsible for administering the Plan, and that person must be knowledgeable in infection control principles and practices as they apply to the facility, service or operation;
- The Plan must provide for employee input in its development and implementation;
- The Plan must consider risks associated with places of employment and the hazards employees are exposed to and job tasks employees perform at those sites. This also requires identifying employees’ individual risk factors, such as those in an immunocompromised state;
- The Plan must prepare for situations that may arise as a result of outbreaks, such as increased rates of absenteeism and the downsizing of operations;
- The Plan must state basic infection prevention measures to be implemented; and
- The Plan must include provisions for the prompt identification and isolation of persons suspected or known to be infected with COVID-19.
Finally, if a Plan is required under the ETS, employees must be trained on the Plan’s provisions.
Miscellaneous requirements and other noteworthy provisions:
- The ETS is not a substitute for other legal obligations applicable to employers, including OSHA/CDC guidance, or Governor Northam’s executive orders;
- Employers are not required to conduct contact tracing following a COVID-19 outbreak;
- Employers are prohibited from using antibody testing in employer decision-making, including decisions of return-to-work;
- Employers are required to keep sick leave policies flexible and consistent with public health guidance and that employees are aware of the same; and
- The ETS prohibits discrimination or retaliation against employees who raise reasonable concerns about infection controls, or who choose to wear PPE, among other protections.
The ETS requires employers to conduct an individualized assessment of the workplace and compliance cannot be achieved by adopting generally applicable policies and templates. Moreover, there will be frequent uncertainty regarding whether any particular employee falls under a lower or medium risk classification and whether the employer can therefore achieve compliance under the reduced regulatory obligations corresponding with lower risk classifications. Accordingly, employers who are in doubt about the applicability of certain risk classifications should err on the side of compliance under the requirements of the higher risk classification.
These new laws will inevitably produce more challenges for employers in a particularly challenging period. Troutman Pepper’s team of employment lawyers look forward to assisting our clients in achieving regulatory compliance in a safe and cost effective manner. Please visit the Troutman Pepper COVID-19 Resource Center for COVID-19-related news and developments.