The Emergency Temporary Standard by the Virginia Department of Labor and Industry (“DOLI”) related to COVID-19 recently became permanent with certain modifications. Pursuant to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (“the Final Standard”), all employers must:
• Assess their workplaces for hazards and assess the risk of exposure to the virus posed by job tasks
• Encourage employees to self-monitor for symptoms of COVID
• Develop and implement policies and procedures for employees to report symptoms of COVID-19
• Treat employees reporting symptoms of the virus as “suspected to be infected” with COVID until/unless another diagnosis has been made
• Remove persons known or suspected to be infected from the workplace and implement return-to-work standards based on testing, symptom resolution, and/or time.
• Establish a HIPAA-compliant system to receive positive COVID test results from employees
• Report a positive test to other employees working at that location within 24 hours (without revealing identity of positive employee)
• Inform their landlord of the positive test. Commercial landlords must notify all tenants that a worker in the building has tested positive for the virus.
• Inform the Virginia Department of Health of the positive test and notify the Virginia Department of Labor and Industry if three or more employees test positive within a 14-day period
• Promote physical distancing by limiting or staggering access to common areas, encourage the use of face coverings, provide adequate supplies for sanitizing surfaces and hands
• Ensure cleaning and sanitizing of common areas and shared surfaces, workstations, tools, equipment and vehicles between shifts
• Provide personal protective equipment (PPE) to employees when physical distancing and cleaning protocols are not feasible or sufficient to mitigate risks
In addition, the Final Standard classifies jobs by risk level. The “very high” and “high” categories include health care workers, any person who deals with the biological specimens or corpses of those infected with COVID, and first responders, among others. “Medium” risk jobs include those in the service industry, manufacturing, agriculture, and retail. “Lower” risk jobs are those with limited exposure to the general public and can be accomplished through the use of telework, staggered scheduling, and social distancing. Employers with jobs falling into the “very high,” “high” and “medium” risk categories must meet additional workplace safety requirements, including the use of face coverings, physical barriers, respiratory equipment, PPE, pre-shift symptom screening, and maintenance of adequate ventilation systems. All employers in industries in the “very high” and “high” risk must have a written infectious disease response plan; employers in “medium” risk industries must do the same if they have over 11 employees. All employers in these categories must provide their workers with training on COVID, its symptoms and transmission, and the use of PPE.
The Final Standard is very similar to the July temporary version of the workplace regulations but includes a few changes. The Final Standard moves workers at correctional facilities, jails, detention centers, and juvenile detention centers from the “medium” risk category to the “high” risk category. It also goes into much more detail about how medium-and high-risk workplaces, like restaurants and grocery stores, should direct airflow systems at their facilities. According to the document, these businesses should increase total airflow, inspect filters to minimize filter bypass and generate “clean-to-less-clean” air movement through the use of air diffusers and dampers. In addition, the Final Standard notes that some infected employees may be contagious even after the recommended 10-day isolation period and warrant additional isolation up to 20 days.
Failure to comply with the Final Standard’s directives exposes employers to fines and administrative enforcement actions by DOLI. Additionally, employers are prohibited from discharging or otherwise discriminating against employees for exercising their rights under this Standard, including employees who raise reasonable concerns about COVID-related infection control to the employer, other employees, a government agency, or the public.