Virginia Enacts Coronavirus Workplace Safety Rules

The Virginia Department of Labor and Industry has passed new rules regarding coronavirus and workplace safety. Effective as of July 27, 2020, these rules will impact many of the businesses in the state and non-compliance is punishable by fines.

This is the first time, in the nation, there have been binding rules placed on businesses around COVID-19 steps for workplace safety. There are more than 30 pages of rules and regulations, application of which will depend on how jobs are classified in terms of risk and how many employees are working in the office or at a worksite. 

Here is a rundown of some of the major implications and requirements employers will face under these rules. 

To start with all employers are required to classify employees based on the following categories:

• Very High Risk - this would include jobs where an employee is working with individuals known to have, or suspected to have, coronavirus 
• High Risk - jobs where an employee may come within 6 feet of a person known to have, or suspected to have, coronavirus, that aren’t otherwise covered under the Very High Risk category
• Medium Risk - jobs where employees will require more than the bare minimum of contact with customers/clients within 6 feet, or the general public; none of whom are known or suspected to have coronavirus - this is the classification the vast majority of employees still reporting to work will fall into 
• Low Risk - basically any job that doesn’t fall into the other categories, and doesn’t require any contact with other employees, the public, customers or clients; anyone who is teleworking is probably going to fall into this category

MANDATORY REQUIREMENTS FOR ALL EMPLOYERS 

• Assessment, Notification and Exposure 
  • Assess the workplace and classify each job 
  • Inform employees how to self monitor and encourage that they do so
  • Develop policies and procedures for employees to report when they are experiencing symptoms 
  • Do not permit employees, or anyone else, suspected to be infected (with symptoms) to remain at work, or a work site, or at a customer or client location 
  • Be as flexible as possible with sick leave policies 
  • Known or suspected to be infected subcontractors shall not report to work until cleared 
  • Businesses shall establish a system to receive reports of positive tests from employees/workers (remember there are HIPPA issues at play here), and notify:
    • Its own employees, who may have been exposed, within 24 hours, keeping all names confidential
    • Within 24 hours, any other employers who may have had workers at a work site/job/office
    • Within 24 hours, any building or property manager/owner where the business may lease space 
    • The Virginia Department of Labor if 3 or more employees test positive in a 14 day period 
• Return to Work Requirements 
  • Employers shall develop policies and procedures for known or suspected to be infected employees to return to work - business will be required to use either a symptom based strategy or test based strategy: 
    • Using symptom based strategy an employee isn’t eligible to return until at least 72 hours have passed since recovery
    • Using test based, must be symptom free and have 2 negative tests taken more than 24 hours apart (businesses can use the test based, but you aren’t going to be able to force someone to get a test, so in a situation where an employee doesn't want to get a test a business may have to rely on the symptom based strategy )
  • Employers shall develop policies and procedures for known to be infected, asymptomatic, workers to return using either a time based strategy or test based strategy 
    • A time based strategy excludes an employee from returning to work until at least 10 days have passed since the first positive test 
    • A test based strategy requires that an employee be symptom free and have 2 negative tests taken more than 24 hours apart
• All common areas, break rooms and lunchrooms shall be closed or controlled 
  • • Businesses will a sign at the entrance to the office or work facility, and all common areas, break rooms and lunchrooms stating that social distancing shall be in place, hands should be washed before and after entering and any other surface area used should be disinfected after use 
    • Employees/workers need to clean and disinfect any area they used prior to leaving, or the employer can clean and disinfect at regular intervals during the day (i.e. every 2 hours)
    • Hand-washing or hand sanitizer needs to be available 
• When multiple employees are in a work vehicle together they should at a minimum be wearing face masks 
• Sanitation and disinfecting 
  • Any employees who work with customers, clients or the general public shall be provided with cleaning supplies, and will immediately clean and disinfect any surface used after the interaction is over 
  • All common area, including bathrooms, frequently touched surfaces, and doors, shall be cleaned, at a minimum, after each shift/work day
  • All shared tools and equipment, workspaces and vehicles shall be cleaned prior to transfer from one employee to another 
• Employees who work at a job who frequently interact with people inside a 6 foot radius shall access to hand sanitizer

SPECIFIC REQUIREMENTS FOR JOBS CLASSIFIED AS VERY HIGH, HIGH AND MEDIUM 

Any businesses who have jobs that are classified as Very High, High or Medium will have specific requirements to meet in order to be in compliance with the rules. The requirements vary depending on the classification, but range from specifications on what type of air-handling systems must be installed, prescreening, isolation limiting access of individuals, and providing face masks and hand sanitizer. 

Any business with an employee classified as Very High, High or Medium should carefully consider what their obligations are under the rules and how to comply with them. 

INFECTIOUS DISEASE PREPAREDNESS AND RESPONSE PLAN 

• Employers with workers who are classified as Very High or High must implement a written infectious disease preparedness and response plan that complies with the requirements of the rules - this must be implemented by September 25.
• Employers with 11 or more jobs classified as Medium must implement a written infectious disease preparedness and response plan that complies with the rules - this must be implemented by September 25

MANDATORY TRAINING

• Anyone businesses that have jobs with classifications other than Lower has to train employees on the following information by August 26:
  • All the requirements under the new laws 
  • Information on how coronavirus is transmitted 
  • Signs and symptoms of coronavirus 
  • Risk factors of severe coronavirus illness with underlying health conditions 
  • Awareness about the ability of pre-symptomatic and asymptomatic individuals to transmit the illness 
  • Safe and healthy work practices - including but not limited to: physical distancing, disinfection procedures, disinfecting frequency, ventilation, non-contact methods of greeting, etc. 
  • Heat related illness prevention including the signs and symptoms of heat related illnesses 
  • The anti-discrimination sections in the laws.

ANTI-DISCRIMINATION  

The rules also prevent discrimination against any employee for exercising their rights under the rules, including any employee notifying the business that they don’t feel comfortable with the current precautions the business is taking in terms of COVID-19, reporting to the business that they are not in compliance with the rules or reporting to the Department of Labor that the business is not in compliance with the rules. 

The best way to sum that up is you basically aren’t going to be able fire or punish an employee who decides to raise any concerns or doesn’t want to work at a location they feel is unsafe. 

 With more than 30 pages of rules, it’s a lot for small businesses to take in, develop policies and maintain compliance, but given the mandatory nature of the rules it’s important for small business owners to understand what needs to be done in order to avoid facing potential fines over non compliance. 

Have questions about the rules, how to implement them or risk management in general? Contact us for a free consultation.