Virginia Workplace COVID-Related Emergency Temporary Standard Requirements

Virginia Workplace COVID-Related Emergency Temporary Standard Requirements

By H. Robert Showers, Esq. and William R. Thetford, Esq.

Last Updated: August 25, 2020

In addition to the myriad employment law changes discussed in our previous articles, the Virginia Occupational Safety and Health Program (VOSH) also implemented new emergency workplace requirements for the duration of the pandemic effective July 2020, in light of COVID-related health concerns. The regulations were adopted on July 15, 2020 and are effective as of July 27, 2020.[1] These regulations apply to most private employers and many public employers. Failure to comply could result in a fine of over $13,000 for serious violations and over $130,000 for repeated or willful violations. Training is required in most circumstances and for most employers.

The first step in understanding and complying with the regulations is applying VOSH’s four-step risk-classification system to your operations:

LOWER RISK: Lower-risk jobs are those that do not require contact inside six feet with persons known to be, suspected of being, or that may be infected with the SARS-CoV-2 virus. These individuals have minimal occupational contact with other employees or the general public, or could achieve minimal occupational contact through the implementation of work practice controls.

MEDIUM RISK: Medium-risk jobs are those that require more than minimal occupational contact, contact inside six feet with other employees or other persons that may be, but are not known or suspected to be, infected with the SARS-CoV-2 virus. These may include, but are not limited to, waiters, grocery store workers, agricultural workers, construction workers, domestic service workers, hairdressers, fitness instructors, workers in poultry and meat processing facilities, manufacturing workers, and healthcare workers in settings without known or suspected sources of SARS-CoV-2.

HIGH RISK: High-risk jobs are those with a high potential for employee exposure inside six feet to known or suspected sources of SARS-CoV-2 virus. These include hospital workers, first responders, medical transport providers, mortuary services workers, medical and dental staff, non-medical support staff, long term care facility staff, home healthcare workers, etc.

VERY HIGH RISK: Very high-risk jobs are those with a high potential for employee exposure inside six feet to known or suspected sources of SARS-CoV-2 virus during the performance of specific medical (e.g., aerosol generating procedures), postmortem, or laboratory procedures with specimens from a known or suspected source of the SARS-CoV2 virus.[2]

Organizations will have slightly differing standards for the various categories based on risk-level. In general, employers will need to implement a system of employee self-assessment and screening for signs and symptoms of COVID-19, create policies and procedures to allow for six feet of social distancing, prevent sick employees from infecting other employees, provide and require personal protective equipment, create a return-to-work policy for sick employees, and establish and implement a notification system to alert employees and others of potential virus exposure, among other things.

Specifically, all employers with (A) eleven or more employees in medium risk jobs, or (B) any number of employees in high or very high-risk jobs, must prepare an Infectious Disease Preparedness and Response Plan and train employees on it by September 25, 2020. In addition, all employers (except for lowest-risk employers) must provide COVID-19 training by August 26, 2020.

Employers may choose from several alternatives in creating a compliant policy for employees returning to work after known or suspected infection with COVID-19.

Symptom-based strategy: The employee may not return to work until “(i) at least three days (72 hours) have passed since recovery, defined as the resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath, and (ii) at least 10 days have passed since symptoms first appeared.”[3]

Test-based strategy: The employee must not return to work until “(i) resolution of fever without the use of fever-reducing medications, (ii) improvement in respiratory symptoms (e.g., cough, shortness of breath), and (iii) negative results of an FDA Emergency Use Authorized COVID-19 molecular assay for detection of SARS-CoV-2 RNA from at least two consecutive respiratory specimens collected 24 hours or more apart (total of two negative specimens).”[4] Employers are not allowed to require employees to pay the cost of COVID-19 return-to-work determinations.

Asymptomatic Employees: Employees who test positive must not return to work until at least 10 days have passed since first testing positive for COVID-19 and only if the employee does not subsequently develop symptoms. If the employee later develops symptoms, either the symptom-based strategy above may be used based on the date of symptoms appearing and subsiding or the test-based strategy may be used as above.

The regulations also discuss a number of other requirements. For more information see the published regulations, a nine-step guidance document by the Virginia Occupational Safety and Health Program, and the Department of Labor and Industry’s FAQs.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Will Thetford at wrt@simmsshowerslaw.com for legal advice that will meet your specific needs.

[1] Emergency Temporary Standard: Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, Dep’t of Labor and Industry (July 24, 2020), https://www.doli.virginia.gov/wp-content/
uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf.
[2] Guidance for Employers and Employees, Dep’t of Labor and Industry, https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-ETS-EMPLOYER-GUIDE-FINAL-7.23.2020-English.pdf. (last visited Aug. 25, 2020).
[3] DOLI, supra note 1.
[4] Id.