By Benjamin D. Briggs, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: In late May, Virginia Governor Ralph Northam directed the state’s Department of Labor and Industry (DLI) to develop emergency temporary standards to prevent workplace exposure to COVID-19. Those rules were adopted on July 15, 2020.
Federal OSHA has only issued guidance related to COVID-19 compliance, proceeding with enforcement under existing regulations and the General Duty Clause. 22 states, including Virginia, operate State Plans that enforce safety standards against private employers and have the authority to issue their own safety regulations.
Governor Northam, in a July 15, 2020, news release, announced the adoption of statewide emergency workplace safety standards in response to the Novel Coronavirus (COVID-19). “These first-in-the-nation safety rules will protect Virginia workers by mandating appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth.”
The Virginia Department of Labor and Industry’s 14-member Safety and Health Codes Board voted to approve an emergency temporary standard (ETS) on infectious disease prevention. The ETS will remain in effect for six months and sunsets either six months after its effective date (which was July 27, 2020), or when it is superseded by a permanent rule.
Notably, the Emergency Rule includes a provision that protects employers who comply with guidance from the Centers for Disease Control and Prevention (CDC) related to mitigation of COVID-19 in the workplace. To the extent employers in Virginia comply with CDC guidelines that are as stringent as or more stringent than the provisions in Virginia’s Emergency Rule, they will be deemed in compliance with the Emergency Rule.
The Emergency Rule requires employers to analyze job tasks on a task-by-task basis (not on an employee-by-employee basis as originally proposed). Similar to Federal OSHA’s Guidance on Preparing Workplaces for COVID-19, the Emergency Rule breaks exposure risk levels into four categories: “very high,” “high,” “medium,” and “lower.” “Very High” risk jobs include activities that involve aerosol-generating procedures or working with known COVID-19 patients or specimens. “High” risk jobs include activities in the healthcare, first responder, medical transport, and mortuary services industries. “Medium” risk jobs are those that involve working in close-quarters with others or those with regular contact with the public such as educational settings, grocery stores, correctional settings, personal care, fitness, public transportation, and healthcare settings where exposure to COVID-19 is not expected. “Lower” risk jobs are those that do not fit into one of the other categories.
Employers with job tasks classified as “Very High” or “High,” as well as employers with greater than 10 employees with job tasks classified as “Medium” must prepare an Infectious Disease Preparedness and Response Plan, as outlined in the Emergency Rule.
Employers with job tasks at all risk levels must conduct an exposure assessment, notify employees of risks associated with COVID-19, notify employees that they should not report to work if they have or are suspected to have COVID-19, educate employees on how to prevent exposure to COVID-19 as well as the signs and symptoms of the illness, inform employees how to report to the employer of COVID-19 symptoms or that they have been confirmed positive with COVID-19. The Emergency Rule also contains provisions related to flexible sick-leave policies and notifying contractors and building owners of confirmed COVID-19 cases. Finally, all employers must prepare return to work policies and procedures including methods to identify COVID-19 cases, conduct workplace disinfection, and implement other measures that are protective of employee safety and health.
Virginia is leading the State Plan states (and federal OSHA) with its complex and comprehensive COVID regulations. The Washington State Department of Occupational Safety and Health issued its own temporary emergency rule in late-May, though it is not as complex or comprehensive as Virginia’s Emergency Rule.
For more detail as to other steps an employer must take based upon the specific risk level identified during the initial exposure assessment, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.