Virginia Issues COVID-19 Emergency Temporary Standard

On July 15, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board approved an Emergency Temporary Standard for COVID-19 to be enforced by the Virginia Occupational Safety and Health program (VOSH). Virginia is the first state to adopt a specific standard intended to protect workers and “to control, prevent, and mitigate the spread of [COVID-19]” in the workplace.

The emergency standard includes an extensive list of requirements that all employers within VOSH’s jurisdiction must follow, regardless of the level of exposure to COVID-19, and additional requirements for employers based on exposure level. The emergency standard goes into effect on July 27, 2020. The standard will expire after six months or “upon expiration of the Governor’s State of Emergency,” but the Board will be considering the adoption of a permanent standard during this same time period.

Mandatory Requirements for All Employers

The standard includes the following requirements for all employers regardless of the exposure risk level to COVID-19:

• Conduct an assessment of the workplace for “hazards and job tasks that can potentially expose employees to … COVID-19” and “classify each job task as ‘very high,’ ‘high,’ ‘medium,’ or ‘lower’ risk levels of exposure.”
• “Develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19, and no alternative diagnosis has been made (e.g., tested positive for influenza).”
• Prohibit employees or other persons known or suspected to be infected with COVID-19 from reporting to or remaining at work until cleared for return to work through a symptom-based or test-based strategy.
• “Establish a system to receive positive [COVID-19] test reports from employees, subcontractors, contract employees, and temporary employees” and notify certain individuals of the positive tests.
• Notify the Virginia Department of Health within 24 hours of discovering a COVID-19 positive case.
• Notify the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees present at work “within a 14-day period testing positive for [COVID-19] during that 14-day time period.”
• Ensure that employees observe social distancing (i.e., staying at least six feet from other persons or separated by a permanent, solid, floor-to-ceiling wall) while on the job and during paid breaks on the employer’s property.
• Comply with “mandatory requirements of any applicable Virginia executive order or order of public health emergency.”
• When social distancing is not feasible given the nature of the employee’s job, appropriate respirators and personal protective equipment (PPE) must be used.

Additional Requirements for Jobs at “Very High,” “High,” and “Medium” Exposure Levels

With the exception of the “lower” risk level, the emergency standard imposes additional requirements for employers based on the exposure risk levels (i.e., “very high,” “high,” and “medium”). The standard’s defined exposure levels are similar to the COVID-19 job classifications set forth in the Occupational Safety and Health Administration’s (“federal OSHA”) guidance. The “very high” and “high” exposure risk levels include jobs with high potential for employee exposure to known or suspected sources of COVID-19 during specific medical (e.g., aerosol-generating procedures), postmortem, or laboratory procedures or while working “inside six feet with known or suspected sources of [COVID-19] or persons known or suspected to be infected with [COVID-19].”

Many employers will likely have workers who fit into the “medium” exposure risk level. The “medium” exposure risk level includes jobs that “require more than minimal occupational contact” with others who may have COVID-19, but who are not known or suspected of having COVID-19. Workers in this category include those who provide services in poultry, meat, and seafood processing; commercial transportation of passengers by air, land, and water; restaurants and bars; manufacturing settings; and construction.

For workers at the “medium” exposure risk level, employers will be required to:

• “[E]nsure that air-handling systems … are appropriate to address … COVID-19 disease related hazards and job tasks”;
• Implement, to the extent feasible, 12 administrative and work practice controls, including prescreening or surveying each employee to verify that each is not exhibiting COVID-19 symptoms prior to working, providing and requiring employees to wear face coverings when social distancing is not possible, and providing and requiring employees in customer-facing jobs to wear face coverings; and
• Conduct a PPE assessment for COVID-19 (verified through a written certification) and select the appropriate PPE based on the assessment.

Infectious Disease Preparedness, Response Plans, and Training

Employers with hazards or job tasks at the “medium” exposure risk level with 11 or more employees and employers with jobs at the “very high” and “high” exposure risk levels must develop and implement written Infectious Disease Preparedness and Response Plans and provide training on the practices. Employers with hazards or job tasks at the “very high,” “high,” and “medium” exposure risk levels must also provide COVID-19–related training to employees. The training must “enable each employee to recognize the hazards of … and signs and symptoms of COVID-19” and the employer’s procedures for minimizing exposure. Employers with jobs at the lower risk level must provide employees with basic written or oral information on COVID-19 hazards and “measures to minimize exposure.”

Key Takeaways

• Virginia is one of 22 states with an occupational safety and health program for private workers. It remains to be seen whether other states will follow Virginia in adopting a COVID-19 workplace safety standard. Oregon OSHA has announced plans to adopt temporary rules addressing COVID-19 that would go into effect on September 1, 2020. Federal OSHA has not announced any plans to issue a COVID-19 standard and has been criticized for that by labor unions, community activists, and others. The VOSH standard may add to the pressure federal OSHA is under.
• The standard is comprehensive, and employers—particularly those outside of the healthcare industry—may find compliance to be a challenge. With the exception of the training required on infectious disease preparedness and response plans, the emergency standard requires employers to comply with the training requirements by August 26, 2020. The emergency standard requires employers to prepare a written infectious disease preparedness and response plan and provide training on their plan by September 25, 2020.
• Many of the provisions in the emergency standard are adopted from U.S. Centers for Disease Control and Prevention (CDC) guidelines. The emergency standard provides that if an employer complies with a recommendation contained in the CDC’s COVID-19 guidelines that provides equivalent or greater protection than a provision in the emergency standard, “the employer’s actions shall be considered in compliance with [the emergency] standard.”

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.