Virginia Issues Guidance for Complying with COVID-19 Workplace Safety Rules and Proposes to Adopt Permanent Rules

Effective July 27, 2020, the Commonwealth of Virginia adopted temporary COVID-19 workplace safety rules for employers in Virginia, resulting in Virginia becoming the first state in the nation to adopt such rules in connection with the COVID-19 pandemic. You can find additional information about the temporary workplace safety rules here. Virginia's Safety and Health Codes Board has announced its intent to adopt permanent rules within six months, with an effective date no later than January 27, 2021. The proposed permanent rules are substantially the same as the temporary rules and will apply to all employers, employees, and places of employment that are under the jurisdiction of the Virginia Occupational Safety and Health program. A copy of the proposed permanent rules is available at www.doli.virginia.gov. Additionally, the Safety and Health Codes Board will hold a public hearing on the proposed permanent rules at a future date to be published in the Richmond Times Dispatch and posted on the Virginia Regulatory Town Hall at www.townhall.virginia.gov. The public can provide comments on the proposed permanent rules until September 25, 2020 at www.townhall.virginia.gov.

The Virginia Department of Labor and Industry has issued guidance regarding nine steps employers should take to achieve compliance with the workplace safety rules:

1. Employers must assess their workplace for hazards and job tasks that could potentially expose employees to COVID-19 and classify each job task according to the hazards to which employees are potentially exposed in order to ensure compliance with the applicable sections of the temporary rules for "very high," "high," "medium," or "lower" risk levels of exposure. Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes. Following are descriptions of the risk levels:
   1. Lower Risk: Lower risk jobs are those that do not require contact inside six feet with persons known to be, suspected of being, or that may be infected with the SARS-CoV-2 virus. These individuals have minimal occupational contact with other employees or the general public or could achieve minimal occupational contact through the implementation of work practice controls.
   2. Medium Risk: Medium risk jobs are those that require more than minimal occupational contact inside six feet with other employees or other persons that may be, but are not known or suspected to be, infected with the SARS-CoV-2 virus. These jobs may include, but are not limited to, waiters, grocery store workers, agricultural workers, construction workers, domestic service workers, hairdressers, fitness instructors, workers in poultry and meat processing facilities, manufacturing workers, and healthcare workers in settings without known or suspected sources of SARS-CoV-2.
   3. High Risk: High risk jobs are those with a high potential for employee exposure inside six feet to known or suspected sources of the SARS-CoV-2 virus. These include hospital workers, first responders, medical transport providers, mortuary services workers, medical and dental staff, non-medical support staff, long-term care facility staff, and home healthcare workers.
   4. Very High Risk: Very high risk jobs are those with a high potential for employee exposure inside six feet to known or suspected sources of the SARS-CoV-2 virus during the performance of specific medical (e.g., aerosol generating procedures), postmortem, or laboratory procedures with specimens from a known or suspected source of the SARS‑CoV-2 virus.
2. Employers must establish and implement a system for employee self-assessment and screening for COVID-19 signs and symptoms.
3. Employers must provide flexible sick leave policies, telework, staggered shifts, and other administrative/work practice controls when feasible to reduce or eliminate contact with others inside six feet. Additionally, employers should encourage employees to report symptoms by ensuring they are aware of any company sick leave policies and alternative working arrangements, as well as the paid sick leave available through the Families First Coronavirus Response Act (FFCRA).
4. Employers must establish and implement procedures that will prevent sick employees and other persons from infecting healthy employees. These procedures should include the following:
   1. implementing engineering or work practice controls that eliminate or significantly reduce employee exposure to the SARS-CoV-2 virus;
   2. ensuring that employees observe physical distancing while on the job and during paid breaks;
   3. requiring employees to comply with the safety and health practices outlined in the rules related to protective gear, sanitation, disinfection, and hand-washing; and
   4. providing personal protective equipment to employees and ensuring its proper use when other work place controls such as engineering controls, work practice changes, and social distancing do not provide sufficient protection.
5. Employers must establish and implement procedures to ensure employees known or suspected of having COVID-19 do not come to work, as well as procedures for them to return to work. This return to work policy must include:
   1. prohibiting employees known or suspected of having COVID-19 from reporting to work until they have been cleared to return through either a symptom-based or test-based strategy; and
   2. if a test-based strategy is not used, consulting with appropriate healthcare professionals about when an employee's symptoms indicate it is safe for them to return to work.
6. Employers must establish and implement a system for notifying employees, building owners, and other employers of workplace exposures to the virus and suspected or confirmed cases so that they can take actions to protect health and safety.
7. Employers must comply with the anti-discrimination provisions in the new rules. This includes refraining from discharging or in any way discriminating against an employee because they have raised a reasonable concern about infection control regarding the SARS-CoV-2 virus or COVID-19 disease in the workplace with the employer, other employees, a government agency, or to the public through any form of media.
8. Employers with 11 or more employees and jobs classified as medium risk, and employers with any number of employees and jobs classified as high or very high risk, must prepare an Infectious Disease Preparedness and Response Plan no later than September 25, 2020.
9. Employers with medium, high, and very high risk workplaces must provide COVID-19 training to employees no later than August 26, 2020. Lower risk places of employment must provide employees with basic written or oral information on COVID-19 hazards and measures to minimize exposure.

FAQs regarding the rules, as well as outreach, education, and training materials are available at www.doli.virginia.gov.

Additional Information

Venable is available to provide clients with assistance in monitoring and complying with the new workplace safety rules and to assist in developing compliance systems to address regulatory and oversight obligations relating to COVID-19.