Virginia becomes the first state in the nation to adopt temporary mandatory workplace safety standards for SARS-CoV-2
On July 15, 2020, Virginia became the first state in the nation to adopt temporary, mandatory workplace safety standards for SARS-CoV-2 (COVID-19), when 16VAC25-220 was enacted and adopted by the Safety and Health Codes Board. The standards include mandating: appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces. Interestingly, 16VAC25-220 explicitly states that, “nothing in the standard shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 disease.”
Of note, application of the standard is based upon the risk of exposure to the novel coronavirus. According to the Safety and Health Codes Board of Virginia, factors that shall be considered in determining exposure risk level include, but are not limited to: “a. The job tasks being undertaken, the work environment (e.g. indoors or outdoors), the known or suspected presence of the SARS-CoV-2 virus, the presence of a person known or suspected to be infected with the SARS-CoV-2 virus, the number of employees and other persons in relation to the size of the work area, the working distance between employees and other employees or persons, and the duration and frequency of employee exposure through contact inside of six feet with other employees or persons (e.g., including shift work exceeding 8 hours per day); and the type of hazards encountered, including potential exposure to the airborne transmission of SARS-CoV-2 virus; contact with contaminated surfaces or objects, such as tools, workstations, or break room tables, and shared spaces such as shared workstations, break rooms, locker rooms, and entrances and exits to the facility; shared work vehicles; and industries or places of employment where employer sponsored shared transportation is a common practice, such as ride-share vans or shuttle vehicles, car-pools, and public transportation, etc.”
The five different categories of risk level, along with an explanation of their definition and the legal requirements of each are as follows:
Includes job roles or workplaces that do not require contact within 6 feet of persons who are known or suspected to be infected with SARS-CoV-2, such as jobs in office building settings that are able to achieve minimal occupational contact.
Implement measures to achieve minimal occupational contact wherever feasible, such as:
- Installation of floor to ceiling physical barriers constructed of impermeable material;
- Staggered work shifts that allow employees to maintain physical distancing from other employees, other persons, and the general public;
- Delivering services remotely by phone, audio, video, mail, package delivery, curbside pickup or delivery, etc., that allows employees to maintain physical distancing from other employees, other persons, and the general public;
- Mandatory physical distancing of employees from other employees, other persons, and the general public; and,
- Mandatory use of face coverings when it is necessary for an employee to have brief contact with others inside the six feet distance.
All other job roles/tasks not defined by the other risk categories, including:
- Poultry, meat, and seafood processing; agricultural and hand labor; commercial transportation of passengers by air, land, and water; on campus educational settings in schools, colleges, and universities; daycare and afterschool settings; restaurants and bars; grocery stores, convenience stores, and food banks; drug stores and pharmacies; manufacturing settings; indoor and outdoor construction settings; correctional facilities, jails, detentions centers, and juvenile detention centers; work performed in customer premises, such as homes or businesses; retail stores; call centers; package processing settings; veterinary settings; personal care, personal grooming, salon and spa settings; venues for sports, entertainment, movies, theaters, and other forms of mass gatherings; homeless shelters; fitness, gym, and exercise facilities; airports, and train and bus stations; any medical field profession that does not come in contact with persons known or suspected to be infected with SARS-CoV-2; etc.
- Ensure that air-handling systems where installed are appropriate to address the SARS-CoV-2 virus and SARS-CoV-2 disease related hazards and job tasks that occur at the workplace;
- Implement the following administrative and work practice controls to the extent feasible:
- Prior to the commencement of each work shift, prescreening or surveying shall be required to verify each covered employee does not have signs or symptoms of COVID-19;
- Provide face coverings to suspected to be infected with SARS-CoV-2 non-employees to contain respiratory secretions until the non-employees are able to leave the site (i.e., for medical evaluation and care or to return home);
- Implement flexible worksites (e.g., telework);
- Implement flexible work hours (e.g., staggered shifts);
- Increase physical distancing between employees at the worksite to six feet;
- Increase physical distancing between employees and other persons, including customers to six feet (e.g., drive-through physical barriers) where such barriers will aid in mitigating the spread of SARS-CoV-2 virus transmission, etc.;
- Install physical barriers (e.g., such as clear plastic sneeze guards, etc.), where such barriers will aid in mitigating the spread of SARS-CoV-2;
- Implement flexible meeting and travel options (e.g., using telephone or video conferencing instead of in person meetings; postponing non-essential travel or events; etc.);
- Deliver services remotely (e.g. phone, video, internet, etc.);
- Deliver products through curbside pick-up or delivery;
- Require employers to provide and employees to wear face coverings who, because of job tasks cannot feasibly practice physical distancing from another employee or other person if the hazard assessment has determined that personal protective equipment, such as respirators or surgical/medical procedure masks, was not required for the job task; and,
- Require employers to provide and employees in customer facing jobs to wear face coverings.
- Assess the workplace to determine if SARS-CoV-2 hazards or job tasks are present or are likely to be present that necessitate the use of personal protective equipment (PPE) and, if hazards are present, determine and provide appropriate PPE to employees;
- Verify that the required SARS-CoV-2;
- Disease workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date of the hazard assessment; and the document as a certification of hazard assessment; and,
- Develop and implement a written Infectious Disease Preparedness and Response Plan, if employing more than 11 employees (a template for the plan can be found here).
Includes employees that engage in the following job tasks:
- Healthcare (mental or physical) delivery to a persons with a known or suspected case of SARS-CoV-2;
- Healthcare services (including non-medical support services) performed for persons with a known or suspected case of SARS-CoV-2;
- First responder and medical transport services provided to a person with a known or suspected case of SARS-CoV-2; and,
- Mortuary services involved in preparing a post-mortem individual that had a known or suspected case of SARS-CoV-2, for burial or cremation.
Very High Risk
Includes employees that engage in the following jobs tasks:
- Treatment of patients with a known or suspected case of SARS-CoV-2 and come into contact with contaminants;
- Performance of testing or handling specimens of persons with a known or suspected case of SARS-CoV-2;
- Performance of “Aerosol-generating procedures” of persons with a known or suspected case of SARS-CoV-2, such as intubation, cough induction procedures, bronchoscopies, some dental procedures and exams, or invasive specimen collection; and,
- Performance of an autopsy that involves “aerosol-generating procedures” of persons with a known or suspected case of SARS-CoV-2.
For High Risk and Very High Risk, Employer shall:
- Install physical barriers, (e.g., clear plastic sneeze guards, etc.), where such barriers will aid in mitigating the spread of SARS-CoV-2 and SARS-CoV-2 virus transmission, to the extent feasible;
- Conduct prescreening or surveying to verify each covered employee does not have signs or symptoms of SARS-CoV-2, prior to the commencement of each work shift;
- Limit non-employee access to the place of employment or restrict access to only certain workplace areas to reduce the risk of exposure;
- Post signs requesting patients and family members to immediately report symptoms of respiratory illness on arrival at the healthcare facility and use disposable face coverings;
- Offer enhanced medical monitoring of employees during SARS-CoV-2 outbreaks;
- Provide all employees with job-specific education and training on preventing transmission of SARS-CoV-2, including initial and routine and refresher training in accordance with 16VAC25-220-80;
- Ensure that psychological and behavioral support is available to address employee stress at no cost to the employee, to the extent feasible;
- Provide alcohol-based hand sanitizers containing at least 60% ethanol or 70% isopropanol to employees at fixed healthcare work sites and to emergency responders and other personnel for decontamination in the field when working away from fixed work sites;
- Provide face coverings to suspected to be infected with SARS-CoV-2 virus nonemployees to contain respiratory secretions until the non-employees are able to leave the site (i.e., for medical evaluation and care or to return home);
- Verify that the required SARS-CoV-2 virus and SARS-CoV-2 disease workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date of the hazard assessment; and the document as a certification of hazard assessment;
- Implement a respiratory protection program in accordance with 16VAC25-90-1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m), that covers each employee required to use a respirator;
- Unless contraindicated by a hazard assessment and equipment selection requirements in subdivision 1 of this subsection, employees classified as very high or high exposure risk shall be provided with and wear gloves, a gown, a face shield or goggles, and a respirator when in contact with or inside six feet of persons known to be or suspected of being infected with SARS-CoV-2. Where indicated by the hazard assessment and equipment selection requirements in subsection D of 16VAC25-220-50, such employees shall also be provided with and wear a surgical/medical procedure mask. Gowns shall be large enough to cover the areas requiring protection;
- Develop and implement a written Infectious Disease Preparedness and Response Plan;
- Where feasible, employers shall:
- Implement flexible worksites (e.g., telework);
- Implement flexible work hours (e.g., staggered shifts);
- Increase physical distancing between employees at the worksite to six feet;
- Increase physical distancing between employees and other persons to six feet;
- Implement flexible meeting and travel options (e.g., use telephone or video conferencing instead of in person meetings; postpone non-essential travel or events; etc.);
- Deliver services remotely (e.g. phone, video, internet, etc.); and,
- Deliver products through curbside pick-up.
- Ensure that appropriate air-handling systems are installed and maintained in accordance with manufacturer’s instructions;
- Use airborne infection isolation room(s) (AIIR) when available for performing aerosol-generating procedures on patients with known or suspected to be infected with the SARS-CoV-2 virus; and,
- Use autopsy suites or other similar isolation facilities when performing aerosol-generating procedures on the bodies of known or suspected to be infected with the SARS-CoV-2 virus persons at the time of their death.
All Risk Levels
All employees, regardless of risk level
- Develop and implement policies and procedures for employees to report when employees are experiencing symptoms consistent with SARS-CoV-2, and no alternative diagnosis has been made;
- Not permit employees or other persons known or suspected to be infected with SARS-CoV-2 virus to report to or remain at the work site or engage in work at a customer or client location until cleared for return to work;
- Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies;
- Discuss with subcontractors and companies that provide contract or temporary employees about the importance of employees or other persons who are known or suspected to be infected with the SARS-CoV-2 virus of staying home;
- Establish a system to receive reports of positive SARS-CoV-2 tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being known or suspected to be infected with SARS-CoV-2) present at the place of employment within the previous 14 days from the date of positive test, and the employer shall notify:
- The employer’s own employees who may have been exposed, within 24 hours of discovery of the employees possible exposure, while keeping confidential the identity of the known to be infected with SARS-CoV-2 virus person;
- Other employers whose employees were present at the work site during the same time period;
- The building or facility owner;
- The Virginia Department of Health within 24 hours of the discovery of a positive case; and,
- The Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.
- Ensure employee access to the employee’s own SARS-CoV-2 virus and SARS-CoV-2 disease related exposure and medical records in accordance with the standard applicable to its industry;
- Develop and implement policies and procedures for employees known or suspected to be infected with the SARS-CoV-2 virus to return to work using either a symptom-based or test-based strategy, depending on local healthcare and testing circumstances:
- For known or suspected to be infected with the SARS-CoV-2 virus employees the symptom-based strategy excludes an employee from returning to work until (i) at least three days (72 hours) have passed since recovery, defined as 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;
- The test-based strategy excludes an employee from returning 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 SARS-CoV-2 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); and,
- The employer shall not require the employee to pay for the cost of SARS-CoV-2 testing for return to work determinations.
- Ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property, including policies and procedures that:
- Use verbal announcements, signage, or visual cues to promote physical distancing; and,
- Decrease worksite density by limiting non-employee access to the place of employment or restrict access to only certain workplace areas to reduce the risk of exposure.
- Close or control access to common areas, breakrooms, lunchrooms, locker rooms etc. To control the common area, the employer should verify that the following conditions are met:
- At the entrance of the designated common area or room the employer shall clearly post the policy limiting the occupancy of the space, and requirements for physical distancing, hand washing and hand sanitizing, and cleaning and disinfecting of shared surfaces;
- Limit occupancy of the designated common area or room so that occupants can maintain physical distancing from each other;
- Employees shall be required to clean and disinfect the immediate area in which they were located prior to leaving, or the employer may provide for cleaning and disinfecting of the common area or room at regular intervals throughout the day, and between shifts of employees using the same common area or room (i.e., where an employee or groups of employees have a designated lunch period and the common area or room can be cleaned in between occupancies); and,
- Hand washing facilities, and hand sanitizer where feasible, are available to employees.
- Ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry, when the space does not allow for social distancing.
The Emergency Temporary Standard took immediate effect on July 27, 2020, the date it was published in a Richmond newspaper in accordance with Virginia law. However, the Virginia Department of Labor and Industry’s news release indicates that the requirement for certain workplaces to have a written infectious disease preparedness and response plan and the training component related to such plans will take effect sixty days after the effective date, on September 25, 2020, and all other training requirements will take effect thirty days after the effective date, on August 26, 2020. The temporary standard will remain in effect for six months, until (January 27, 2021) at which time it will automatically expire unless it’s replaced by a permanent regulation.
Enforcement of the Emergency Temporary Standard will be the responsibility of the Virginia State Plan for Occupational Safety and Health (“VOSH”), under VOSH’s existing enforcement authority and regulations. VOSH may issue penalties to employers for willful, repeated and, failure-to-abate violations, as well as for any serious accidents violations that result in a fatal accident or are classified as “high-gravity” violations (a non-fatal accident resulting in serious physical harm to an employee). The present penalties are as follows:
Serious Violations – up to $13,047.
Willful and Repeat Violations – up to $130,436.
Failure to Abate – up to $13,047 per day.
If you are an employer that wants to be sure they are in compliance with the newly released standard, the Virginia Department of Labor and Industry offers On-Site Consultation Services to help private and state and local government employers better understand and voluntarily comply with VOSH standards. Priority is given to high hazard workplaces with 250 or fewer employees and all services are offered to employers at no cost. The VOSH Cooperative Programs Division has also released training and outreach materials including “Nine Steps to Achieve COVID-19 ETS Compliance,” a Hazard Assessment Certification document, a PowerPoint on the ETS requirements, FAQs about the standard, an Infectious Disease Preparedness and Response Plan Template for different industries including specific guidance for research laboratories, retail stores, and offices, and a training information sheet for employers with hazards or job tasks classified as “lower” risk.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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