Virginia Covid-19 Emergency Temporary Standard
Attention all Virginia Employers: The New COVID-19 Permanent Standard Recently Released Requiring Immediate Compliance
Virginia Governor Ralph Northam recently released Virginia’s permanent COVID-19 workplace safety and health rules. The new rules mandate appropriate personal protective equipment (PPE), sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across Virginia. The Permanent Standard replaces the Emergency Temporary Standard, which has been in place since July 2020. The Permanent Standard keeps many provisions from the Temporary Standard, but has a few notable changes. The rules took effect January 27, 2021 and will remain in effect throughout the coronavirus pandemic.
Changes from Temporary Standard
While there are many similarities from the Temporary Standard, the Permanent Standard made a few changes that employers should be aware of so they can get into compliance with the new regulations:
- The Permanent Standard relaxes employer’s reporting obligations, only requiring an employer to report to the Virginia Department of Health when two or more employees test positive for COVID-19 within a 14-day period, rather than reporting each positive case.
- The Permanent Standard modifies the return to work requirements, removing the test-based approach permitted under the Temporary Standard. Now, instead of relying on a negative COVID-19 test, employers must rely on a symptom-based standard before allowing employees to return to work.
- The Permanent Standard explains that face coverings must be worn over the mouth and nose and fit snugly under the chin and should not have vents or valves. It also clarifies that face shields do not qualify as face coverings. However, face shields may be worn if face coverings can’t be worn because of a medical condition.
- Under the Permanent Standard, an employer will not be in violation if it fails to provide PPE, if PPE is not readily available, despite the employer’s good faith effort.
- The Permanent Standard requires employers in the very high, high, and medium risk categories to implement enhanced ventilation controls for air-handling systems.
Notably, the Permanent Standard doesn’t require employers to exclude employees from the workplace if they have been in close contact with an individual infected with COVID-19. The Permanent Plan also doesn’t provide any guidance regarding employees who have received a COVID-19 vaccine. The Permanent Standard notes that employers will be considered to be in compliance with the standard if they comply with CDC guidance, whether mandatory or non-mandatory, as long as the guidance provides equivalent or greater protection than the Permanent Standard.
Key Requirements From Permanent Standard
Exposure Risk Level
Similar to the Temporary Standard, the Permanent Standard requires employers to implement measures to reduce exposure to COVID-19 and protect workers from exposure. The Permanent Standard continues the “exposure risk level” categorization requirement. The specific standard that applies to a workplace depends on the exposure risk, hazards present, and tasks undertaken by employees. A workplace’s risk level will be categorized as either lower, medium, high, or very high.
To determine a specific workplace’s risk level, multiple factors must be considered: the job tasks being undertaken; the work environment (such as, indoor or outdoor); the known or suspected presence of COVID-19; the presence of a person known or suspected to be infected with COVID-19; the number of employees and other individuals in relation to the size of the work area; the working distance between employees and other employees or individuals; the duration and frequency of employee exposure through contact inside of six feet with other employees or individuals; and the types of hazards encountered, including exposure to COVID-19, contact with contaminated surfaces or objects, and shared work vehicles or shared transportation.
The guidance provides examples of industries in each risk category. “Very high” risk work places include workplaces dealing directly with COVID-19 laboratory samples. “High” risk industries include health care, first responder services, and correctional facilities. “Medium” risk industries include on campus schools and universities, daycare, restaurants and bars, grocery stores, retail stores, gyms, and salon and spa settings. “Lower” risk workplaces are those workplaces not otherwise classified as a higher risk group. Employees in “lower” risk workplaces have minimal contact with other employees, individuals, and the general public, such as office buildings.
Mandatory Requirements For All Employers
While there are additional requirements for businesses specific to their exposure risk level, there are a set of requirements all employers in Virginia must comply with. While this article doesn’t discuss every requirement discussed in the Permanent Standard, it highlights the key takeaways for employers. Under the Permanent Standard, all Virginia employers must:
- Assess their workplaces and job tasks and classify each task according to the correct risk exposure level and ensure compliance with the applicable standard;
- Inform employees of methods for self-monitoring COVID-19 symptoms and encourage self-monitoring;
- Develop and implement policies and procedures for employees to report when they are experiencing COVID-19 symptoms. If an employee is experiencing COVID-19 symptoms and hasn’t received an alternative diagnosis, the employee should be designated as “suspected to be infected” with COVID-19. Employees known or suspected to be infected with COVID-19 should not be allowed to report to work, remain at the workplace, or engage in work with, or at a customer or client location until cleared for return to work. Such employees are permitted to telework, if allowed by the employer.
- Create a system to receive reports of positive COVID-19 tests by employees, subcontractors, contract employees, and temporary employees, present at the workplace;
- Develop and implement a return to work plan;
- Enforce social distancing; and
- Sanitize and disinfect the workplace;
Employers are required to create a system to receive reports of positive COVID-19 tests by employees, subcontractors, contract employees, and temporary employees, present at the workplace. Employers are required to notify employees who may have been exposed within 24 hours of discovery of possible exposure. Employers must also notify other employers that had employees present at the workplace during the exposure period, as well as the building or facility owner. Employers must keep the identity of the infected individual confidential. Employers are also required to notify the Virginia Department of Health when the workplace has had two or more confirmed cases of COVID-19 of employees within a 14-day period. The Virginia Department of Labor and Industry must be notified within 24 hours if three or more employees test positive for COVID-19 within a 14-day period.
Return to Work Plan
Employers must develop and implement policies and procedures for employees known or suspected to be infected with COVID-19 to return to work. Employees known or suspected to be infected with COVID-19 that are symptomatic must be excluded from returning to work until: (1) the employee is fever-free (below 100.0° F) for at least 24 hours, without the use of fever-reducing medications; (2) respiratory symptoms, such as cough and shortness of breath, have improved; and (3) at least 10 days have passed since symptoms first appeared. Employees known to be infected with COVID-19 who are asymptomatic must be excluded from returning to work until 10 days after their first positive COVID-19 test. Employers are prohibited from requiring employees to pay for COVID-19 testing for return to work determinations.
Social Distancing, Sanitizing and Disinfecting
Employers must establish and implement policies and procedures ensuring employees practice physical distancing while working and during paid breaks at the workplace. Specifically, employers should use verbal announcements or signage to promote physical distancing. Employers should limit non-employee access to the workplace or restrict access to only certain areas to reduce risk of exposure. Specifically, access to common areas, breakrooms, or lunchrooms should be closed or controlled so employees can maintain physical distancing.
Employees that interact with customers, contractors, the general public, or other individuals must immediately clean and any surfaces contacted during the interaction. All common spaces must be cleaned and disinfected at least once during or at the end of the work shift, or once every twelve hours if there are multiple shifts. Employees should be required to clean and disinfect common areas they utilized or employers can arrange for cleaning and disinfecting throughout the day and between shifts. Employers should make handwashing facilities and hand sanitizer available to employees. All shared tools, equipment, workspaces, and vehicles must be cleaned and disinfected between employee use. Depending on the risk exposure level of specific workplaces and tasks, employers must ensure compliance with PPE requirements.
Infectious Disease Preparedness and Response Plan
Employers with high and very high risk levels, or medium risk with 11 or more employees, must develop and implement a written Infectious Disease Preparedness and Response Plan. The plan must address multiple matters, including contingency plans for situations that may arise if a COVID-19 outbreak occurs in the workplace, such as understaffing, the need for reduced workforce or staggered shifts. Requirements related to Infectious Disease Preparedness and Response Plans go into effect March 26, 2021.
Employers with job tasks classified as very high, high, or medium exposure risk must provide training on the hazards and characteristics of COVID-19 to all employees. Training must enable employees to recognize the signs and symptoms of COVID-19 disease and the procedures to be followed in order to minimize spread of infection. Training should also include information about the methods of COVID-19 transmission, safe and healthy work practices, PPE, and the employer’s Infectious Disease Preparedness and Response Plan, if applicable.
Employers with job tasks categorized as lower risk should provide employees with written or oral information about the symptoms of COVID-19 and ways to minimize exposure. The Department of Labor and Industry will develop and information sheet, which employers may provide to employees to comply with this requirement. These training requirements go into effect March 26, 2021.
Employers are prohibited from discriminating against an employee for exercising rights under the standard’s health and safety provisions or for raising concern about COVID-19 infection control.
This article is not a comprehensive list of all requirements under the Permanent Standard. However, it does discuss the key takeaways from the new regulations. Employers should assess their individual risk exposure levels and determine what additional requirements they must comply with, based on their risk level. Employers already in compliance with the Temporary Standard should review their current policies and procedures and revise them, if necessary, to comply with the new regulations.
Proper compliance with this Permanent Standard can be confusing. General Counsel, P.C. has been following COVID-19 guidance very closely and has been working nonstop to help employers comply with changing regulations. Our attorneys can help you determine which risk exposure category your business falls under, as well as what requirements you must comply with, and then help you take the necessary steps to comply.
General Counsel, P.C. & Business Compliance, LLC
In an effort to make it easier for employers in Virginia to comply with COVID-19 employment regulations, local law firm General Counsel, P.C., in conjunction with Business Compliance, LLC, developed the COVID-19 Compliance Plans Packages to help employers quickly and inexpensively comply with the requirements of the Permanent Standard. Developed by employment lawyers, Business Compliance LLC’s documentation packages provide the required documentation, training material and signage, all compiled into packages you can buy, download and put in place almost immediately to protect your workers and comply with the new Permanent Standard.
These packages will contain everything you need to comply, and utilize easy to follow questions to ensure the package generated for you is tailored to your business. When you purchase these packages, you will get an employer checklist, employee checklist, a return-to-work plan, employee training slide-deck, and, if applicable to your workplace risk exposure category, an infectious disease preparedness and response plan.
For more information about our COVID-19 Compliance Plans, call us today at 703-991-7973.