by Wythe Michael

Virginia has become the first state to adopt worker safety regulations that specifically address the risks posed by the COVID-19 virus. The regulations are effective immediately and Virginia employers should immediately take steps to comply.

A copy of the regulations can be found here.

The regulations apply to all Virginia employers and require training and infectious control plans for certain employers.

Assessing Employee Risk of Exposure

All employers must first conduct an exposure assessment and determination, establish notification requirements, and assess employee risk of exposure.

This includes an assessment of the workplace for hazards and job tasks that can potentially expose employees to the virus. Employers need to classify each employee according to potential exposure to risk. The risks are categorized as “very high,” “high,” “medium” and “low” risk. Each level of risk has different regulatory requirements. Below is a summary of the risk categories:

• Very high risk employers include those that use “aerosol-generating procedures” like intubation and cough induction procedures and some dental procedures as well as those that collect or handle specimens from known or suspected COVID-19 individuals or perform an autopsy on such individuals.
• High risk industries include jobs with high potential for employee exposure inside 6 feet with known or suspected sources of COVID-19, including employees working in health care, first responders, medical transport services and mortuary services.
• Many employers will fall into the medium risk category. For example, healthcare services “not involving exposure to known or suspected sources of SARS-CoV-2” can be classified as medium risk if the health care provider determines in its assessment that it is unlikely that patients or other persons known to be or suspected of being infected with COVID-19 will be seen by the health care provider.¹  In addition, the medium risk category includes industries such as agriculture; food processing plants; transportation; educational settings such as schools, colleges, and universities; daycare and after school care; restaurants and bars; grocery stores; retail establishments; veterinarians; sports and entertainment venues; gyms; airports; and salons.
• Low risk employers include those with minimal contact with others, and those where workers can telework or where workers can maintain a physical distance from other employees and customers.

Notifications Required if an Employee or Contractor Tests Positive for COVID-19

If an employee or contractor has tested positive for the virus, the regulations require the company to provide the following notifications:

• The company must notify all workers and any other person who was present at the place of employment within the previous 14 days from the date of positive test. Companies need to make the notification within 24 hours of learning of the positive test while keeping confidential the worker’s identity.
• Businesses must notify other employers, such as subcontractors, about the positive test result.
• Businesses must notify the building/facility owner. In turn, the building/facility owner must notify all employer tenants in the building that one or more cases have been discovered and the floor or work area where the case was located.
• Businesses must notify the Virginia Department of Health within 24 hours of the discovery of a positive case.
• Businesses must notify the Virginia Department of Labor and Industry within 24 hours of the discovery of 3 or more employees present at the place of employment within a 14-day period.

Develop and Implement Sick Leave and Return to Work Policies

Companies also must 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. These workers cannot return to work until cleared. Employees reporting such symptoms can telework if this is an option. The regulations provide a specific process for employees who tested positive for the virus to return to work, and employers can choose a test based or symptom based strategy for return to work.

Companies should ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies, in addition to compliance with the federal Families First Coronavirus Response Act.

If subcontractors work at the organization, the employer must notify their employers about the policies and encourage them to develop non-punitive sick leave policies.

Other requirements of Virginia’s Emergency Workplace Safety Regulation:

• All companies need to establish and implement policies and procedures designed to ensure that employees observe physical distancing while on the job and during paid breaks on company property.
• Businesses should close or control access to common areas, breakrooms or lunchrooms.
• Face coverings are required for employees who have contact with the public.
• Workers are required to have access to hand sanitizer and hand washing and the businesses should frequently clean high-contact surfaces.
• When multiple employees are occupying a vehicle for work purposes and/or where physical distancing is not possible, the employer shall ensure compliance with face coverings applicable to its industry.
• Companies with hazards or job tasks that are very high or high risk or companies with medium risk that have 11 or more employees must develop and implement a written Infectious Disease Preparedness and Response Plan. This must be completed within 60 days of July 27, 2020.
• Companies with hazards or job tasks classified at very high, high or medium exposure risk at a place of employment shall 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. The program shall enable each employee to recognize the hazards of the SARS-CoV-2 virus and signs and symptoms of COVID-19 disease and shall train each employee in the procedures to be followed in order to minimize these hazards. This training must be completed within 30 days of July 27, 2020 (except for training related to the Infectious Disease Preparedness and Response Plan).
• In addition, depending on risk, the regulations provide for sanitation requirements, engineering control changes, PPE mandates, and training of employees on these mandates and employer requirements.

The regulations expire in six months (January 27, 2021) or upon expiration of the Virginia Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.

The above contains a brief summary of these regulations. The text of the actual regulations is 35 pages long and is complex. Companies should review these regulations in detail. Please contact Wythe Michael with questions
(804) 565-6811 or wmichael@goodmanallen.com.

¹ In performing the assessment, two key definitions are the following:

• “Known to be infected with the SARS-CoV-2 virus” means a person, whether symptomatic or asymptomatic, who has tested positive for SARS-CoV-2 and the employer knew or with reasonable diligence should have known that the person has tested positive for SARS-CoV-2.
• “Suspected to be infected with SARS-CoV-2 virus” means a person that has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2 and no alternative diagnosis has been made (e.g., tested positive for influenza).