Virginia’s COVID-19 Workplace Safety Standards Are Effective NOW! (Coronavirus and the Law)

The final version of the standards can be found on the Department of Labor and Industry website (pdf).

The DOLI also has provided resources for download.

These standards are designed to supplement and enhance Virginia Occupational Safety and Health (VOSH) guidance and regulations and do not override the Governor’s orders. The regulations also indicate if an employer is complying with the CDC guidelines, the employer will be considered to be in compliance with these standards. Therefore, the question is whether your workplace is up to date with the CDC!

What is the risk to employers?

It is critical employers comply with these standards. Employers cannot discharge or discipline employees for raising a reasonable concern about COVID-19 in the workplace. This is why transparency and communication to employees about your efforts to keep employees safe in the workplace is critically important.

Do these standards apply to your workplace?

Whether these standards apply to you depends on whether certain job tasks your employees perform are considered Very High, High, Medium, or Low risk for exposure purposes. What matters is tasks—not positions, not products, services, or even the number of employees.

To make this determination, HR and management professionals will need to review all employee job functions and characterize them as Very High, High, Medium, or Low. Factors that may be considered include:

• The presence of a person with known or suspected exposure;
• The number of employees in relation to the physical size of the working area;
• The working distance between employees;
• The duration and frequency of exposure through contact within six feet;
• Contact with airborne transmission, contaminated surfaces, workstations, break rooms and other shared spaces;
• Flow through entrances and exits in and around the facility; and
• Use of shared work vehicles/transportation.

The following are examples of job tasks in each category:

• “Very High” Risk includes services where there is a very high potential for exposure from known sources of COVID-19 such as medical, postmortem, and laboratory procedures, dental exams, invasive specimen collection, and testing for COVID-19.
• “High” Risk includes services where there is a high potential for exposure from known or suspected sources of COVID-19 such as health care and health care support services, cleaning rooms or patients, outpatient medical services, drug treatment programs, outreach services, mental health services, home health care, nursing home care, assisted living and hospice care, rehabilitation services, blood donation services, first responder services, medical transport services.
• “Medium” Risk includes services where there is more than a minimal occupational contact inside six feet with employees or the general public who may or may not be known or suspected to be infected. Categories include poultry processing, commercial transportation, college campus education settings, restaurants/bars, grocery stores, pharmacies, manufacturing settings, construction, correctional facilities, services performed in other homes or businesses, retail stores, personal care such as spas and salons, sports venues, entertainment, fitness centers, airports, homeless shelters, and other areas where mass gatherings exist.
• “Low” Risk includes services where there is limited occupational contact with other employees or the general public such as telecommuting, services performed in staggered shifts, delivery services, and locations with mandatory physical distancing.

Many job tasks at the same place of employment can be designated as presenting either Very High, High, Medium, or Low potential exposure risk. Employers cannot ignore potential hazards. The standards include a general “reasonableness” assumption, so if an employer could have known with reasonable diligence then the employer may be deemed to have known.

When you have a potential exposure:

Immediate Actions! Within 24 hours of the discovery of a possible exposure at your worksite:

1. Notify employees (keeping the person’s name confidential!)
2. Notify your landlord
3. Notify other employers whose employees are at your worksite
4. Notify Virginia Department of Health
5. Notify Virginia Department of Labor and Industry (VDOLI) (only if 3 or more employees at the worksite test positive within a 14 day period)
6. Disinfect any areas where a person with a known exposure or suspected infection worked or used equipment.
7. Where feasible, observe a 24-hour shut-down of those areas prior to disinfecting

Returning to work:

If an employee tests positive, employers are required to use either a symptom-based, test-based, or time-based strategy for the employee to return to work. Remember to always consult with VDH first.

1. Symptom-based strategy (for symptomatic employees) excludes an employee from returning to work until (i) at least three days (72 hours) have passed since recovery, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath) and (ii) at least 10 days have passed since symptoms first appeared.
2. Test-based strategy (for asymptomatic or symptomatic employees) excludes an employee from returning to work until (i) resolution of fever without the use of fever-reducing medications, (ii) improvement in respiratory symptoms (e.g., cough, shortness of breath), and (iii) production of two negative test results from at least two specimens collected 24 hours or more apart.
3. Time-based strategy 

• • For asymptomatic employees: Excludes an employee from returning to work until at least 10 days have passed since the date of the employee’s first positive COVID-19 diagnostic test, assuming the employee has not developed symptoms since the employee’s positive test. If the employee develops symptoms, then the symptom-based or test-based strategy must be used.
  • For asymptomatic “close contact” employees: Employees who come into close contact with, or who may live with, an individual with a confirmed diagnosis or symptoms may return to work after either 14 days have passed since the last close contact with the diagnosed/symptomatic individual. This includes the diagnosed/symptomatic individual receiving a negative COVID-19 test. (See the CDC’s definition of “close contact.”)

Requirements for ALL employers:

1. Classify all job tasks according to the risk levels above. You may need a team to determine these risk classifications. We are available to provide professional counsel on classifying jobs and tasks accurately.
2. Do not use serological testing, also known as antibody testing, as a way to make return to work decisions or to classify employees.
3. Encourage employees to self-monitor for symptoms. Develop and implement policies and procedures for employees to report experiencing symptoms, having a potential exposure, or having tested positive.
4. Do not permit persons known or suspected to be infected to return to work or remain at the worksite.
5. Ensure sick leave policies are flexible and known to employees.
6. Work with subcontractors and other temporary employees or independent contractors to ensure proper protocols for preventing known exposures.
7. Create workplace protocols that include the following:
   • Post signs for physical distancing.
   • Decrease worksite density by limiting non-employee access.
   • Limit or close access to common areas like breakrooms.
   • Require face coverings and other PPE if necessary.
   • Increase sanitization and disinfection processes.
8. Disinfect all common spaces including bathrooms, frequently touched surfaces, and doors. These areas must be cleaned and disinfected at the end of each shift at a minimum. All shared tools, equipment, workspaces, and vehicles must be cleaned and disinfected prior to transfer from one employee to another.
9. Provide PPE.

Risk-Level Specific Guidance

Infectious Disease Preparedness and Response Plan
Applies to: “Very High” Risk | “High” Risk | “Medium” Risk with 11+ employees

1. Develop and implement a written Infectious Disease Preparedness and Response Plan.
   1. Designate a person responsible for implementing their plan.
   2. Provide for employee involvement in the development and implementation of the plan.
2. DOLI provides sample training materials. Ensure these materials are applicable to your workplace and cover your specific needs.

Required Training
Applies to: “Very High” Risk | “High” Risk | “Medium” Risk

1. Provide training on the hazards and characteristics of COVID-19 to all employees working at the place of employment (regardless of employee risk classification).
2. Maintain a written certification record for each employee.
3. Re-train when necessary.
4. DOLI provides sample training materials. Ensure these materials are applicable to your workplace and cover your specific needs.

Additional Precautions
Applies to: “Very High” Risk | “High” Risk | “Medium” Risk

1. Screen employees for symptoms before each shift.
2. Limit non-employee access to the workplace.
3. Provide job-specific education and training on preventing transmission and routine refresher training.
4. Ensure no-cost psychological and behavioral support is available to address employee stress.
5. Certify in writing that you performed the workplace hazard assessment.
6. Provide face masks.
7. Implement flexible work hours and sites (if feasible).

Keep in mind this article is only a summary of a Virginia employer’s requirements. There are also additional specific guidelines for employers that work in health care, emergency response, or postmortem procedures. Please take the time to familiarize yourself with these requirements and don’t forget the Labor & Employment team is here to work with you in navigating your specific workplace needs.