Today, Virginia’s new and detailed COVID-19 regulation takes effect. The rule, an “emergency temporary standard” (ETS), was adopted July 15th by the Virginia Department of Labor and Industry (DOLI). Unlike general guidance and recommendations issued by CDC and federal OSHA, the Virginia rule requires all employers regulated by DOLI to develop, implement, and enforce COVID-19 prevention and mitigation measures. Read on for a detailed summary of the rule’s requirements.

Is compliance with CDC guidance enough?

The Virginia ETS states that compliance with CDC guidelines will often be enough to comply with Virginia expectations, as long as CDC is at least as strict as the state rules. In theory, this should be a useful provision. In practice, it creates some uncertainty about exactly what it means and will require a detailed review by each employer of both the CDC guidance and Virginia requirements.

The ETS says, “To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate [COVID-19] . . . 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.”

However, the standard does not give any detail on what it means to “actually comply.” While it does appear that all recommendations in CDC guidance are covered, the CDC has issued a wide variety of guidance on a number of topics. To the degree a business intends to rely on CDC guidance for compliance, it will be helpful to document the specific guidance on which the business is relying, and to compare it with the ETS to make sure the ETS does not impose a more stringent standard.

If it turns out the CDC’s guidance is less stringent, the ETS still does give some credit to “actual compliance” with CDC. The ETS allows that such “actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory . . . shall be considered evidence of good faith in any enforcement proceeding related to this standard.”

Risk assessment must classify the COVID-19 risks for employee tasks

Similar to OSHA’s recommendation that employers conduct a risk assessment and classify employees by the extent of their possible workplace exposure to COVID-19, Virginia employers are now required to do such an assessment. The ETS requires assessing the COVID-19 exposure risks at both the workplace and individual task levels. Required protective measures must then follow appropriately to address the varying risks.

The ETS defines four risk groups or classifications — low, medium, high, and very high — depending on the degree to which each workplace task may expose employees to COVID-19. Unfortunately, the ETS does not define “task” though it provides some examples for different types of business, common tasks, and the types of protective controls that could lower the risk levels in each case.

While the methodology is similar to what OSHA has long recommended in its Guidance on Preparing Workplaces for COVID-19, it is not the same. For example, the Virginia ETS seems to have a broader definition of “medium risk” than federal OSHA although the state did not explain its reasoning.

Every employer’s first step, then, is to conduct a risk assessment and determine the risk level(s) present in the workplace. The standard recognizes that one workplace may have more than one risk level, depending on the task(s) in question, and it requires broadly that employers adopt protective measures to prevent cross-contamination. Employers must include contractors, temporary employees, and others present in the workplace in the assessment. It must also take into account the possibility that asymptomatic and pre-symptomatic individuals may transmit the disease even before it is clear that they may have it.

If your employees have close contact with anyone, they are likely at medium risk

Many employers will find themselves with at least medium-risk workplaces because any employee whose job involves close contact with any other people (whether co-workers, customers, or anyone else) will be at medium risk. That is because there is currently widespread community transmission of the virus, so anyone could be infected. The rule requires that employees be classified at medium risk if they have “more than minimal contact” (within six feet or less) with someone who “may be infected.”

Unless employees have no or extremely minimal contact with others, are protected by impermeable physical barriers, or have only job tasks that enable them to maintain physical distancing, some or all of the workplace will almost certainly fall in the “medium risk” category.

On the other hand, most workplaces will not qualify as “high” or “very high” risk. Those categories will largely apply to employees in the medical (e.g., health care) or scientific (e.g., laboratory) fields with potential exposure to known or suspected cases of COVID-19.

Rule imposes detailed requirements for all risk levels

In addition to the risk assessment, every employer must comply with the following requirements (regardless of risk level):

  • Antibody tests. Do not use serological (antibody) testing to make return-to-work decisions or to make decisions permitting individuals on-site.
  • Reporting policy. Develop policies and procedures that enable employees to report COVID-19 symptoms.
  • Isolation of sick employees. Employees, subcontractors and temporary workers may not work on-site if known or suspected to have COVID-19.
  • Sick leave policies. To the extent feasible, provide (and communicate) “flexible” sick leave policies to employees consistent with existing laws and public health guidance.
  • Record-keeping and notice of infections. Establish a recordkeeping and notification system for positive tests by anyone at the workplace, maintaining confidentiality of the infected individual, and providing notice of the confirmed infection to employees, other employers whose employees were on the premises, building/facility owners, and the VA Department of Health. The DOLI must be notified if three or more workers test positive for the virus within a 14-day period. The ETS does not require contact tracing.
  • Exposure and medical records. Provide employees with access to their own COVID-related exposure and medical records.
  • Return to work and testing. Develop and implement a return-to-work policy that excludes from the workplace people with known or suspected cases until they are cleared to return (based on either minimum passage of time or testing). Employers may require a test to return to work but may not require employees to pay for the test.
  • Physical distancing. Adopt and enforce rules that require physical distancing on the job and while on paid breaks on-site. This includes occupancy and disinfecting procedures in certain common areas.
  • Personal protective equipment. Comply with respiratory protection and PPE industry standards when physical distancing measures cannot be met or when engineering, work practice, and administrative controls are either not feasible or offer insufficient protection.
  • Compliance with executive orders. Comply with applicable Virginia executive or public health emergency orders.
  • Sanitation and disinfecting. Adopt minimum cleaning procedures for all common spaces, shared tools, workspaces, and vehicles; provide access to soap, water, and hand sanitizer during working hours; and comply with existing applicable VOSH hazard communication and sanitation standards.
  • Training. For lower risk level employees, provide oral or written information regarding hazards and symptoms related to the virus. The DOLI provides an information sheet that employers may provide to comply with this mandate. Separate training requirements exist for higher risk levels as detailed below.

Medium and higher risk levels add more requirements

Workplaces with medium and higher risk levels add a number of additional requirements, including:

  • Mitigation measures. These employers must implement engineering controls, administrative controls, and work practices, as well as provide PPE or masks. In addition, these employers must provide written certification of completion of a workplace hazard assessment in conformity with the provisions of the ETS if they have workplaces or employees who fall into a medium or higher risk category.
  • Infectious disease preparedness response plan. Employers with “very high” or “high” classifications, and those with “medium” worksites and than 11 employees, also must develop and implement an infectious disease preparedness response plan.
  • Additional training. Employers at these levels must provide training to all employees on the recognition of virus-related hazards, on the signs and symptoms of the virus, and on procedures to minimize the hazards.

DOLI posts educational and training materials

To help employers comply with the new rule, DOLI has now posted a number of documents for both employers and workers, including:

Compliance help is here!

Since the beginning of the pandemic, Husch Blackwell’s safety and health law team has been helping clients do exactly the type of assessments and planning now required by Virginia law. Our Return-to-Work Policy Generator tools helps companies quickly and affordably prepare response plans, and our team can work with your company to ensure that your workplaces are safe and compliant.

If you have questions about the new Virginia rule or how your company can best respond, please contact Brian Hendrix, Avi Meyerstein, Charles Fleischmann, or your Husch Blackwell attorney.

Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.