By Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northam announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northam directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, will go into effect after it is published in a newspaper in Richmond, VA, which is expected to occur the week of July 27th.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings, and what appears to be the final rule published today.

While some requirements apply to all employers of any size and in any industry, the Rule requires employers to conduct a risk assessment to identify potential exposures to COVID-19 in the workplace, and to categorize employees’ job tasks as “very high,” “high,” “medium,” or “lower” (as defined in the Rule).  The hazard assessment has to be verified by a written certification that identifies the workplace evaluated, the person certifying that the evaluated was completed, the dates of the assessment, and the document as a certification.

Each category has a separate list of precautions employers are required to take in order to mitigate against COVID-19 infections, ranging from robust PPE and sanitation mandates for employees in “very high” risk workplaces, to more lenient restrictions for “lower” risk tasks and employees who have “minimal occupational contact with other employees, other persons, or the general public.”

In order to designate a task or position as “lower” risk, Virginia employers will need to install significant “engineering, administrative and work practice controls,” such as floor to ceiling physical barriers, staggered work shifts and remote work, in addition to the ETS’s general requirements that employers establish and implement policies and procedures designed to ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property, including limiting access to work sites and implementing remote work and staggered shifts “to the extent feasible.”

Generally, the ETS requires Virginia employers to:

1. Develop and implement infection control plans that include:
   • mandating social distancing measures
   • requiring face coverings for employees in customer-facing positions and wherever social distancing cannot be assured
   • providing frequent access to hand washing or hand sanitizing
   • regularly cleaning high-contact surfaces.
   • adopting robust sanitation procedures
   • ensuring appropriate air handling systems
   • implementing policies and procedures for isolating and removing known COVID-19 or suspected COVID-19 employees from the workplace, and for when it is safe for them to return to work (using either a symptom-based or test-based strategy depending on local healthcare and testing circumstances)
   • requiring all employees to be notified within 24 hours if a coworker tests positive for COVID-19
   • requiring notification to the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees testing positive within a 14-day period.
2. Provide COVID-19 related training
3. Provide employment protection for employees who wear their own PPE or who raise a reasonable concern about infection control.

The new VOSH rule reiterates that cloth face coverings do not qualify as PPE under the ETS, since they are not tested for efficacy and their primary purpose is to prevent the wearer from spreading COVID-19 rather than protecting the wearer from infection.  As a result, employee use of face coverings for contact within six feet of coworkers or others will not be deemed to be a sufficient administrative or work practice control on its own to achieve minimal occupational contact.

Employees at “medium” “high,” or “very high” risk will need to complete training on their job’s anti-infection measures, with written certifications required to verify compliance.

Other than healthcare, death care, emergency response, and correctional facilities, most Virginia employers will fall into the Medium and Lower category.  Broken down specifically, the following requirements apply to job tasks determined by the Hazard Assessment to fall into the “medium” category:

1. Ensure HVAC systems are appropriate and functioning properly, consistent with industry standards
2. Where feasible, implement pre-work health screening for COVID-19 symptoms
3. Implement flexible work arrangements (e.g., enhanced telework policies and flexible work hours, and meeting and travel options
4. Increase and ensure physical distancing (6 feet)
5. Where physical distancing cannot be ensured (regardless of how long), provide to and require employees to wear face coverings (unless the employees are already required to wear more robust respiratory protection)
6. Where feasible, install physical barriers to separate employees and/or third parties from each other
7. Conduct a COVID-19 specific PPE hazard assessment
8. For “medium” worksites with 11 or more employees associated with the site, develop and implement a written Infectious Control Plan, as outlined above
9. Provide training to all employees, and certify compliance with the training requirement

Employers with job tasks classified as “lower” have the following obligations provide written or oral information to employees on the hazards and characteristics of SARS-COV-2 and symptoms of COVID-19, as well as safe and healthy work practices and control measures.  VOSH has indicated that it will soon release a workplace poster that, if posted in the workplace, will suffice to satisfy this requirement.

Note that an interesting element of Virginia’s ETS is that an employer may avoid a violation of the ETS by complying with requirements contained in the various workplace focused CDC guidance publications designed to mitigate COVID-19 related hazards or job tasks addressed by the ETS.  Specifically, the VOSH ETS provides:

“To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory,to mitigate SARS-CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard,the employer’s actions shall be considered in compliance with this standard.”

Virginia companies could face financial penalties ranging from $13,000 up to $130,000 for each violation if they are found to have violated the requirements of the ETS.

Other states may soon be following Virginia’s lead.  For example, Oregon is already in the process of drafting a similar set of rules that the state intends to make available by the end of July, with the hope of full implementation in September.  Cal/OSHA is evaluating a petition from worker advocates for a similar rule.  Depending in part on the initial success or challenges of the Virginia ETS, other states could adopt similar rules.  We will continue to keep you updated as more states consider promulgating these types of measures in the coming months.

Conn Maciel Carey’s COVID-19 Task Force, made up of OSHA and Labor & Employment attorneys, has been working diligently with employers across the country, and in particular those in the DMV area, to develop workplace-specific written Exposure Control and Response Plans to address these essential COVID-19-related issues.  As a result, we are prepared to assist Virginia employers quickly come into compliance with VOSH’s new regulatory requirements, so that you can both keep your employees safe and avoid regulatory liability.

For more information about VOSH’s new COVID-19 Emergency Temporary Standard, check out the recording of our August 3rd webinar: “Everything You Need to Know About Virginia OSHA’s New COVID-19 Standard,” which was presented by Eric J. Conn (Chair of Conn Maciel Carey’s national OSHA Practice), Susan Wilcox (a CIH and CSP with Safety Resource Associates in Virginia), and special guest Jennifer Rose (VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry).  Participants in this webinar learned:

• Background about VOSH’s COVID-19 Standard
• What VOSH’s COVID-19 ETS requires
• What to include in your Infection Control Plan
• Requirements for training, face masks, sanitation, and notifications about infected employees
• Timelines and deadlines in VOSH’s new rule

Here are links to a copy of the slides and a recording of the webinar.

Also, during the webinar, we collected numerous questions from participants about VOSH’s new COVID-19 Emergency Temporary Standard, and have now compiled all of those questions into this written Q&A document with our answers and useful links throughout.  These FAQs have also been incorporated into our broader compendium of COVID-19 FAQs on Conn Maciel Carey’s COVID-19 Task Force Resource Page.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.