Effective July 27, 2020, Virginia employers must comply with new COVID-19 workplace safety standards, known as the Emergency Temporary Standard (ETS). The ETS applies to all employers subject to the jurisdiction of the Virginia Occupational Safety and Health (VOSH) Program, which includes virtually all private and non-federal public employers in the Commonwealth.  Failure to comply with the ETS can result in fines as high as $130,463 per each “repeat” or “willful” violation.

Even employers that have carefully complied with or exceeded recommendations of the federal Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) will have work to do to comply with the ETS. The ETS not only effectively makes mandatory many recommendations of CDC and OSHA, it also imposes new obligations on Virginia employers, including:

  • A requirement to conduct a hazard assessment of each job task (or group of job tasks) in the employer’s workplace;
  • Employee training requirements;
  • For many employers, a requirement to prepare an infectious disease preparedness response plan (and to conduct additional training once it is established); and
  • A prohibition on retaliation against employees who exercise certain rights provided under the ETS.

All employers must conduct a hazard assessment

All employers must assess their workplace to determine the risk of COVID-19 exposure. Specifically, employers must classify each job task or group of similar job tasks according to the hazards employees are potentially exposed to, and label the risk as “very high,” “high,” “medium,” or “lower.”

  • “Very high” or “high” refers generally to healthcare- or mortuary-type settings where there is a significant potential for employee exposure either through very close contact (“very high”) or inside 6 feet (“high”) with individuals known or suspected to have COVID-19 or with other sources such as laboratory specimens. (Note: a person is “suspected” to have COVID-19 if the person has signs or symptoms of COVID-19 but has not tested positive, and no alternative diagnosis has been made).
  • “Medium” refers to tasks involving more than minimal occupational contact inside 6 feet with other employees, persons, or the general public who may be, but are not known or suspected to be, infected with the virus. Examples of “medium” risk include work in the food processing industry, commercial transportation, manufacturing, retail establishments including grocery and drug stores, restaurants, and healthcare settings not involving exposure to known or suspected sources of the virus.
  • “Lower” refers to tasks that do not require contact inside 6 feet with others who are known or suspected to be infected, or who may have the virus. Examples of “lower” risk include work in office settings where contact inside 6 feet can be avoided through social distancing, physical barriers, telework, and similar steps.

Because the ETS requires analyzing each job task (or group of similar job tasks), a single business may have different risk levels throughout the organization. The regulations provide that “[t]asks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”

For medium, high or very high risk job tasks, the employer must create a written certification of the hazard assessment. VOSH has posted a sample hazard assessment certification form that can be used to satisfy this requirement. (Although the regulations refer to assessment of job tasks or groups of job tasks, VOSH’s sample form suggests that an employer can alternatively classify individual employees or job categories.) Although not required by law, employers should consider creating a written record that a hazard assessment has been performed even with respect to tasks classified as lower risk.

The hazard assessment does not need to be submitted to VOSH but should be retained in the employer’s records.

Safety requirements

Once the hazard assessment is completed, employers must comply with requirements specific to the hazard level or levels identified in the workplace.

All employers must implement certain safety measures that are largely consistent with CDC/OSHA guidance, including:

  • Inform and encourage employees to self-monitor for COVID-19 symptoms;
  • Implement procedures for employees to report COVID-19 symptoms, and prohibit employees or other persons known or suspected to be infected with the virus from coming to work until cleared under return-to-work protocols;
  • Adopt flexible sick leave policies to the extent feasible and permitted by law and ensure that employees are aware of them;
  • Discuss with contractors and contractor employees the importance of individuals with known or suspected COVID-19 remaining out of the workplace until cleared to return;
  • Develop systems to receive reports of positive COVID-19 test results from employees and contractors, and notify i) others in the workplace who may have been exposed, or who were present at the workplace, within 24 hours of discovery of potential exposure; ii) the facility owner, within 24 hours of discovery of potential exposure; and iii) the Virginia Department of Health within 24 hours of the discovery of a positive case, and within 24 hours after learning that 3 or more employees at the same worksite tested positive in a 14-day period. All notifications must preserve the confidentiality of the infected person;
  • Establish return-to-work protocols for employees known or suspected to have COVID-19, based on either a “time-based” approach (i.e., 72 hours after resolution of fever without use of fever-reducing medications; improvement in respiratory symptoms; and at least 10 days since onset of symptoms), or a “test-based” approach (i.e., resolution of fever without fever-reducing medications; improvement of respiratory symptoms; and two negative COVID-19 test results at least 24 hours apart, with the cost of testing paid by the employer);
  • Ensure that employees observe physical distancing (e.g., by using signage/visual markers, limiting occupancy or access to common areas); and
  • Ensure ready availability of cleaning and disinfecting supplies (e.g., soap/water, hand sanitizer, etc.) and that common or shared work spaces, frequently touched surfaces, and shared equipment are regularly cleaned.

The ETS also requires prescreening or surveying of employees for COVID-19 symptoms before the start of each shift where the employer has job tasks at the worksite classified at medium, high, or very high risk. The ETS does not specify the form that prescreening or surveying should take.

ETS requirements with respect to employee face coverings and personal protective equipment (PPE) depend on the assigned hazard level. Specifically:

  • Face coverings are generally required in any setting (including lower-risk settings) whenever an employee has even brief contact with others inside of 6 feet;
  • In medium risk settings, employers must also both require and provide face coverings to employees with customer-facing jobs or whose job tasks do not permit physical distancing, unless greater protection (such a medical-grade mask) is indicated by the employer’s hazard assessment; and
  • For medium, high, and very high risk settings, employers must conduct a PPE assessment, with employee involvement, and select and have each employee use properly-fitting PPE appropriate to the hazard level, including respirators where indicated.

The ETS provides a medical exception to the face covering requirement and indicates that religious exemptions may be available in some circumstances. For employees in high and very high risk settings. the ETS contains additional requirements regarding PPE, as well as requirements concerning air-handling systems, enhanced training, medical monitoring, and psychological and behavioral supports for employees.

CDC “Safe Harbor”?

The ETS safety requirements are largely consistent with current CDC guidance, but there are differences. For example, the CDC’s current guidance for ending home isolation for infected persons no longer recommends a “test-based” approach and reduces the length of time the individual should be fever-free from 72 to 24 hours. Compliance with CDC guidance will be considered evidence of “good faith” in enforcement proceedings under the ETS. However, employers should be aware that compliance with CDC guidance is not a safe harbor if the ETS imposes a more stringent requirement. VOSH has stated that it will not provide advance guidance to employers on what is or is not more stringent.

Training requirements for all employers

The ETS also imposes training obligations based on the assigned hazard level. These requirements take effect August 26, 2020. Employers with medium, high, and very high risk job tasks must provide COVID-19 related training to all employees at the workplace regardless of the individual employee’s risk classification and must prepare a written certification that the training has been performed. A sample training certification form is available here. The training must cover:

  1. The ETS requirements;
  2. Other CDC or Virginia guidance the employer is complying with in lieu of the ETS (if any);
  3. Characteristics and methods of transmission of the virus;
  4. Signs and symptoms of COVID-19;
  5. Risk factors for severe COVID-19;
  6. Ability of pre-symptomatic and asymptomatic persons to transmit the virus;
  7. Safe and healthy work practices (such as physical distancing, disinfection procedures);
  8. PPE (when required, how to use); and
  9. The anti-discrimination provision of ETS.

Employers with only lower risk job tasks must provide oral or written information to employees on items 1, 3, 4, 6, 7, and 9 from the above list. A sample lower-risk training information sheet that can be provided to employees is available here.

Infectious disease preparedness response plan

Additionally, all employers with exposure risk levels of very high or high with any number of employees, and those with medium risk that have 11 or more employees, must—with employee involvement (or union involvement, if employees are represented)—develop and implement a written infectious disease preparedness response plan (Plan) and train employees on it. This requirement takes effect September 25, 2020. Employers must identify an individual “knowledgeable in infection control principles and practices” as they apply to the workplace who will have responsibility to administer the Plan.  In addition to covering the safety measures discussed above, the Plan must address the following subjects:

  • Persons at particularly high risk of COVID-19, e.g., those who have traveled to locations with “ongoing transmission,” and healthcare employees with unprotected exposures to persons known or suspected to be infected;
  • Employees who work at jobs for other employers with different hazard levels;
  • Individual risk factors due to underlying conditions, to the extent permitted by law;
  • Controls needed to address the foregoing risks; and
  • Contingency plans for issues that may arise during an outbreak, such as increased absenteeism and interrupted supply chains.

A template plan is available here.

Discrimination/retaliation

The ETS prohibits employers from discharging or otherwise discriminating against employees who exercise their rights provided under the ETS, including the right to wear the employee’s own PPE (such as a respirator, face shield, gloves, or face covering) if such equipment is not provided by the employer and does not create a greater hazard for the employee or a serious hazard for other employees.  Retaliation is also prohibited against employees who raise “a reasonable concern about infection control” related to the virus or COVID-19 to the employer, co-workers, a government agency, or to the public either in print or online, including on social media.

Enforcement and penalties  

The ETS will be enforceable by VOSH, which can inspect workplaces and impose financial penalties for violation, including up to $130,463 for each willful or repeated violation (with smaller penalties for lesser violations), as well as criminal penalties in certain circumstances.

Furthermore, the ETS requires employers to continue to follow any applicable Virginia executive or public health orders. Accordingly, employers in the Commonwealth will need to consult multiple authorities in order to protect workers and avoid criminal and/or civil penalties.

Takeaways for employers

The ETS will remain in effect until the earlier of six months from its effective date, expiration of the Governor’s State of Emergency, or adoption of a permanent standard.  Because these requirements may require substantial effort for many employers to comply, all Virginia employers should take immediate steps to come into compliance, beginning with conducting the required hazard assessment. To assist employers with their compliance efforts, VOSH has begun issuing guidance and training materials, some of which are linked above, and all of which are available here.

For more information regarding Virginia’s COVID-19 workplace safety standards or other COVID-19 issues impacting your workplace, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.