Arriving at the tail end of the summer months, the coronavirus threat is the worst that it’s ever been for the U.S. And to think, we thought this country had it bad back in March and April.
Given the turmoil in Washington, D.C., not much clarity concerning employee protections from the coronavirus is coming from Congress. For example, as mentioned in an earlier article from a few months ago, federal law is silent on safety standards concerning the coronavirus in the employment setting.
The Occupational Safety and Health Administration (OSHA) released some guidance regarding preparing the workplace for the coronavirus and how to handle employees returning to work. But these do not have the force of law, as they’re guidelines, not rules or regulations.
Realizing that any regulatory assistance from Washington, D.C. will be minimal, unreliable or both, Virginia has taken the first major step in protecting its workers by implementing occupational safety standards specifically tailored to the coronavirus threat.
Officially called, “§16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‐19,” the Virginia Safety and Health Codes Board adopted these temporary rules on July 15, 2020. The following is an overview of the legal rights and protections provided by this new law.
Virginia’s New Workplace Safety Standards For Employers
These new safety requirements are based on an employee’s risk of exposure to the coronavirus while on the job. There are four different levels of risk:
- Very high: This constitutes a situation where employees have a high potential for exposure to known or suspected sources of the coronavirus, with employees being directly exposed to the known or suspected coronavirus source. Examples include handling coronavirus blood samples or exposure to aerosol-generating procedures (like inducing a coronavirus patient to cough).
- High: Employees have a high potential for exposure inside six feet of the known or suspected source of the coronavirus. However, the nature of possible exposure creates a smaller risk of infection than in a very high exposure risk setting. A high risk exposure workplace might include a health care professional working with a patient or client who might be infected, but not in a way that would expose that health care professional to the patient’s bodily fluids.
- Medium: In a medium risk occupation setting, an employee will have more than a minimum level of contact within six feet of other people. However, this contact will not be with individuals known or suspected to have a coronavirus infection. The typical worker in a restaurant, store or movie theater would be in a medium risk exposure setting.
- Lower: This exposure risk refers to work settings where employees do not need to be within six feet of anyone who is known, suspected or may have an infection.
The exposure risk level of a workplace will help determine what the employer must legally do to protect its employees.
For very high or high risk work environments, employers must implement proper engineering controls, including appropriate air-handling systems, use of airborne infection isolation rooms where there are known or suspected to be infected patients or aerosol-generating procedures and installation of physical barriers.
Administrative and work practice controls must also be implemented. Some of these can include the screening of incoming employees for symptoms of the coronavirus and giving employees the option to telecommute.
Personal protective equipment (PPE) will also likely be required. However, the employer must complete an assessment of the workplace to determine the type of equipment necessary and which employees must wear them.
Employers will also need to develop an Infectious Disease Preparedness and Response Plan.
In medium risk work settings, employers must make sure its air-handling systems are working properly and meets most commercial and residential HVAC requirements.
For the most part, the administrative and work practice controls will be the same for a medium risk environment as it is for a high and very high risk workplace. As for PPE, the employer must assess the place of employment and determine what PPE is necessary and which employees will need to use the PPE.
Employers with medium risk places of employment only need an Infectious Disease Preparedness and Response Plan if they have 11 or more employees.
Mandatory training that meets certain minimum standards will be required of employers with medium, high and very high coronavirus exposure risk work settings. The training will focus on the recognition of coronavirus hazards, as well as symptoms of infection. Employees will also need to be trained on how to reduce these coronavirus hazards.
Regardless of the exposure risk levels to employees, all employers must:
- Assess the workplace and decide which of the four risk levels applies.
- Educate its employees about possible signs of infection or what to do if they think they were exposed to the coronavirus.
- Create a plan for what to do if an employee reports that they might have a coronavirus infection.
- Have a policy that sets out when and how a known or suspected coronavirus infected employee may return to work.
- Not allow employees, subcontractors or temporary employees who are known or suspected to have an infection to come into work until they have been cleared.
- Create a system for workers to report positive coronavirus test results.
- Report instances of positive test results among its workers to the appropriate people or organizations, such as its own employees who might have been exposed to the infected worker and the Virginia Department of Health.
- Control access to common areas, such as breakrooms.
- At a minimum, clean all common spaces at the end of each shift.
- Provide employees with easy access to soap, water and hand sanitizer.
- In areas where known or suspected coronavirus infected individuals have been present, employers must clean and disinfect these spaces before allowing other employees to enter.
This is just a portion of what Virginia temporarily requires of its employers concerning coronavirus protections at work. If you’re interested in learning more, you can read the complete new law.
The following section goes over some of the more practical concerns about implementing Virginia’s coronavirus emergency temporary standard.
FAQ #1: Do these coronavirus safety standards apply to every Virginia employer?
Just about. These safety standards will apply to every employer, employee and occupational environment that falls under the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program. The VOSH program applies to the vast majority of state government and private employers. Most exceptions concern federal agencies and businesses that fall under specialized federal law.
FAQ #2: How do these new requirements relate to existing Virginia workplace protections?
These new employment requirements are intended to supplement existing VOSH program rules and regulations. If there is a conflict between this new law and existing state law, the law that provides greater protection for employees will apply.
FAQ #3: When does this law go into effect?
These coronavirus safety standards will be in force immediately after they are published in Richmond, Virginia in a “newspaper of general circulation.”
It’s unknown exactly when this will happen, although the hope is for publication to take place during the week of July 27, 2020.
Certain requirements will have a delayed enforcement period. For example, covered employers will have 60 days to meet the Infectious Disease Preparedness and Response Plan requirement and 30 days to train covered employees concerning these new safety standards.
FAQ #4: How long will these Virginia workplace safety requirements be in effect?
These legal requirements are only temporary, and will last until they are repealed by the Virginia Safety and Health Codes Board or whichever of the following occurs first:
- Six months have passed from the effective date of the emergency temporary standard;
- The Virginia State of Emergency ends; or
- A permanent workplace safety law goes into effect.
FAQ #5: Will Virginia release additional guidance concerning these legal requirements?
Yes. The VOSH Cooperative Programs Division will release more information about what’s required of employers as soon as possible. Examples of soon-to-be-released guidance include:
- Training materials for employers and employees.
- Answers to frequently asked questions.
- Sample Infectious Disease Preparedness and Response Plans.
- Guidance on how to determine if a job task or workplace hazard imposes a “very high,” “high,” “medium” or “lower” risk of coronavirus exposure.
FAQ #6: Are there any protections for an employee if the employer retaliates because the employee exercised a right pursuant to §16 VAC 25‐220?
Absolutely. Section 16VAC25-220-90 prohibits employers from discriminating against employees in any way, in the following situations:
- The employee exercises his or her rights under this law.
- An employee voluntarily uses his or her own PPE at work (as long as the employee isn’t increasing the level of potential harm to another employee).
- The employee “raises a reasonable concern” about the risk of coronavirus infection to an employer, another employee, the media or a government agency.
- The employee has a reasonable fear of injury or death and as a result, refuses to come in to work or complete a job task.
FAQ #7: What happens if the employer doesn’t follow the Virginia coronavirus requirements, but instead follows guidelines as set out by the U.S. Centers for Disease Control (CDC) and Prevention?
As long as the CDC guidelines provide for the equivalent or greater protections in the workplace, the employer will be deemed to be in compliance with the Virginia coronavirus regulations.
FAQ #8: Aren’t Virginia employers sharing medical information about employees concerning the coronavirus a violation of medical privacy laws?
Any employer with recording or reporting requirements concerning the medical information of its employees must carry out these mandates in a way that does not violate the Health Insurance Portability and Accountability Act (HIPPA), the Americans with Disabilities Act (ADA) or any other applicable law.
FAQ #9: Does this law require employees to use PPE, such as face masks, if it is harmful to their health?
No, but these will be exceptions and employers must still make sure that the rest of its employees are wearing the necessary PPE.
