Virginia Adopts COVID-19 Workplace Safety Mandates

Assessing Exposure Risk and Identifying Applicable Regulatory Requirements

The regulations require covered employers to review hazards and job tasks at their places of employment and to classify them as “very high,” “high,” “medium,” or “lower” risk of exposure to the SARS-CoV-2 virus, which causes the disease known as COVID-19. Employers should use the following criteria:

1. Very High exposure risks are those with high potential for employee exposure to known or suspected sources of the virus, like laboratory samples, or persons known or suspected to be infected, including during medical, postmortem, or laboratory procedures. For purposes of the VOSH regulations, a person is “suspected” to be infected if the person has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2, and no alternative diagnosis has been made.
2. High exposure risks are those with high potential for employee exposure, with employees less than six feet from known or suspected sources of the virus or persons known or suspected to be infected with the virus. Employees in this category are often healthcare service providers who have significant contact with others.
3. Medium exposure risks are those that require more than minimal occupational contact of less than six feet from other employees, other persons, or the general public who may be infected, but who are not known or suspected to be infected. Employees in this category work in a range of settings, including retail stores, restaurants, grocery stores, commercial transportation, as well as employees who perform work on customer premises and in gyms, manufacturing settings, and indoor and outdoor construction settings.
4. Lower exposure risks are those not classified at medium or higher risk levels. These positions do not require contact inside six feet with persons known or suspected to be infected. Employees in this category have minimal contact with others, including the general public. Employers can convert otherwise medium or higher risk positions to lower risk positions by implementing certain engineering, administrative, and work practice controls, such as installation of physical barriers, telework, staggering shifts to allow physical distancing, remote deliveries, mandating use of face coverings, and mandatory physical distancing. For purposes of the VOSH regulations, “physical distancing” means staying at least 6 feet apart from others, or separation by a permanent, solid, floor to ceiling wall.

A single place of employment may have job tasks or hazards at varying levels of exposure risk. The regulations contain some requirements applicable to all covered employers and also impose heightened requirements on employers with jobs at medium, high, or very high exposure risk.

Mandatory Requirements for All Employers

The regulations contain a number of requirements that employers in all exposure risk levels must follow.

Screening and notification requirements.

• Employers must not permit employees or other persons known or suspected to be infected with SARS-CoV-2 virus to report to or remain at the work site or engage in work at a customer or client location until cleared for return to work.
• To the extent permitted by law, employers must provide a system to receive reports of positive SARS-CoV-2 tests from employees, subcontractors, contract employees, and temporary employees who have been at the work site within the past 14 days.
• Employers must notify employees of possible workplace exposure within 24 hours of learning of the exposure to a known case, while maintaining the confidentiality of the identity of the infected person in accordance with the Americans with Disabilities Act. In the same time frame, employers must also notify any other employers whose employees were exposed, as well as the building/facility owner, and the Virginia Department of Health.
• If three or more employees present at the place of employment test positive for the virus within a 14-day period, employers must notify DOLI within 24 hours.
• Employers must provide information to employees on self-monitoring for COVID-19 symptoms and encourage them to do so and must develop and implement policies and procedures for employees to report COVID-19 symptoms.

Procedures Governing the Return to Work

• Infected Employees. Employers must develop and implement procedures for infected employees to return to work. These procedures may follow a symptom-based approach or a test-based approach.

-  A symptom-based approach excludes symptomatic employees known or suspected to have the virus from returning until three days post-recovery and ten days after symptoms first appeared. Recovery is defined as “resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.”

-  A test-based approach excludes employees known or suspected to have the virus from returning until (i) the employee’s fever has resolved without the use of medication, (ii) the employee’s respiratory symptoms (e.g., cough, shortness of breath) have improved, and (iii) the employee has had two consecutive negative results, more than 24 hours apart, from an FDA-authorized test for the virus. The employee may not be required to pay for such testing if it is performed for purposes of return to work determinations.

• Asymptomatic Employees Who Test Positive for the Virus. Employers must also develop procedures governing the return to work of employees who are asymptomatic but who are known to be infected with the virus. These procedures may follow a time-based or test-based strategy.

-  A time-based strategy allows an employee to return to work after ten days have elapsed since their first positive COVID-19 diagnostic test. If the employee develops symptoms after their first positive test, the test-based or symptom-based strategies above must be used.

-  A test-based strategy allows an employee to return to work after they receive two consecutive negative results, more than 24 hours apart, from an FDA authorized test for the virus.

• Antibody Tests. Antibody (serology) test results cannot be used to make decisions about returning employees to work who were previously classified as known or suspected to be infected with the SARS-CoV-2 virus.

Other Exposure Controls

• Except as otherwise permitted by the regulations, employers must enforce physical distancing on work premises. Employers should implement signage and other visual cues and decrease worksite density by limiting or restricting access to shared spaces, and comply with occupancy limits in application public health emergency or executive orders.
• Common areas must be closed or controlled, such as through restricted access and reconfiguring work spaces where employees congregate. When closure is not feasible, controlled access may be provided in compliance with the following requirements:

-  The entrances to these areas must clearly state the occupancy limit and sanitation and physical distancing requirements.

-  The employer must enforce the occupancy limit of these areas.

-  If employees are not required to disinfect the immediate area in which they were just located, the employer must provide for cleaning at daily regular intervals.

-  Hand sanitizer and hand washing facilities, where feasible, must be available to employees in these areas.

• Employers must ensure compliance with personal protective equipment standards applicable to the industry when the nature of the employee’s work area does not allow for physical distancing.
• Employers must disinfect work areas accessed by known or suspected infected persons before other employees have access to the area.
• All common spaces must be disinfected, at a minimum, at the end of each shift. This includes frequently touched surfaces and doors.
• Employers must provide disinfectant products designated by the Environmental Protection Agency for use against COVID-19.
• Employers must ensure flexibility of sick leave policies, to the extent reasonably possible, and ensure employees are aware of these policies.

Anti-Discrimination Provisions

The regulations prohibit an employer from discriminating against any employee who exercises their rights under the standard. Employers must not discriminate, in any way, against an employee who voluntarily wears their own personal protective equipment if that equipment does not create a serious hazard for the employee or other employees. Additionally, discrimination is prohibited against employees who raise concerns about the safety of their workplace.

Additional Requirements for Medium, High, and Very High Risk Positions

The regulations specifically require employers with medium risk positions and with 11 or more employees, and all employers with high or very high risk positions, to develop and implement a written infectious disease preparedness and response plan within 30 days of the effective date of the regulations. Any employer with medium, high, or very high risk positions also must provide training to all employees working at the place of employment, regardless of employee risk classification, on the hazards and characteristics of the SARS-CoV-2 virus and COVID-19 disease, within 60 days of the effective date of the regulations.

Many Compliance Considerations

Virginia employers should ensure that they promptly take steps to comply with these mandatory regulations. The Virginia regulations overlap with but do not supplant employers’ obligations under federal law. Employers should continue to follow guidance from the federal Occupational Safety and Health Administration, as noted in Pillsbury’s client alerts of April 17, 2020 and May 20, 2020. In reopening to onsite work, employers should also comply with public health guidance from the Centers for the Disease Control and the Equal Employment Opportunity Commission, as described in Pillsbury’s client alert of May 1, 2020. Virginia’s new standards may have national implications, as they may prompt other states to follow suit. It has been reported that Oregon is already expected to implement a similar set of rules by the end of July.

For further information and to obtain advice and strategic input on your return-to-work planning, in addition to the listed authors, feel free to contact any of our Employment attorneys, including Jean Kuei, Rebecca Carr Rizzo, and Andrea Milano, who can also coordinate appropriate involvement of colleagues within the Employment Group, Workplace Safety attorneys Tom Van Wyngarden and Stephanie Angkadjaja, and the Pillsbury Crisis Management Team, including Aimee Ghosh.

Pillsbury is closely monitoring and analyzing the global legal, economic, policy and industry impacts of COVID-19. For our latest insights, visit our COVID-19 and Economic Impact Resource Center.