Post written by Mindy Carlin, Partner at Access Point Public Affairs. Access Point Public Affairs currently advocates on behalf of the Northern Virginia Chamber Partnership on issues affecting our region in the General Assembly. This post is for informational purposes and can not be considered legal advice. Please contact your attorney with specific questions regarding compliance of the DOLI Emergency Standards.
On July 15, Virginia adopted first-in-the-nation workplace safety standards for COVID-19. Below is a brief overview of a webinar in which I participated today on these standards, hosted by the Virginia Chamber of Commerce. Below is a brief overview for your reference. A recording of the webinar will also be available on the Virginia Chamber website – www.getvabacktowork.com. For additional information not covered in this summary, please see the full Emergency Standards.
- The Governor has issued a number of emergency orders in response to COVID-19, and directed the Virginia Department of Labor and Industry (DOLI) and within DOLI, VOSH (basically OSHA for Virginia), to prepare emergency standards related to worker protection.
- Within DOLI, the Virginia Safety and Health Codes Board, which is an appointed, citizen body, approved emergency standards on July 15, making Virginia the first in the nation to take this action.
- Impetus for the emergency standards was concern that there were no enforceable standards at the federal level.
- There was a desire to have Virginia lead the way and provide a template for other states to follow.
- Concerns were expressed that there was a lack of recognition of the efforts employers have been taking to protect workers.
- There is an assumption that if an employee contracts COVID-19, the workplace was responsible.
- Concern with the lack of opportunity for business community input on the emergency standards was shared, including the very short turn-around time to consider business input.
- The regulations took effect yesterday, July 27, but there is a lot of confusion regarding the standards, including contradictory/undefined standards that were included in the final regulations. At this time, the agency is not and cannot enforce the emergency standards without training, which has not yet happened.
- These temporary standards are set to expire in six-months with a sunset at the expiration of Governor’s State of Emergency, which currently does not have an expiration date.
- It is likely permanent standards will be considered beyond this period. There is an expectation there will be opportunities for public input on proposed permanent standards in the October timeframe.
Overview of requirements for ALL businesses under VOSH:
- A business must develop policies and procedures for employees to report COVID-19 symptoms.
- Infectious disease preparedness and response plans are required within 60 days of the effective date (July 27)
- The new standards prohibit known/suspected cases at worksites.
- “Flexible” sick leave policies are required but there is not clarity regarding what this means and some believe this requirement is beyond VOSH’s jurisdiction/authority.
- Reporting of positive tests to the Virginia Department of Health is required (within 14 days) and must include employees and subcontractors.
- Mandatory handwashing stations and hand sanitizer are required “where feasible.”Virginia is the only place where this is required in country at this time, the language “where feasible” was added to hopefully cover situations where hand sanitizer is unavailable, important to note that “feasibility” is determined by the agency, not the employer.
- Building and facility owners must notify tenants of COVID-19 cases/suspected cases.
- If an employer has three or more positive tests within a three-week period, they also have to report to VOSH.
- There is a lack of clarity as to whether this applies to a work site or an employer.
- Employers must conduct hazard assessments for all job tasks.
- Hazard assessments for job tasks in the emergency standards are defined as “very high,” “high,” “medium,” and “low.”
- The agency wants employers to group job tasks into categories that align with the hazard assessment categories.
- There is confusion as to whether these categories apply to industries, job sites, or the workplace, but DOLI is suggesting that these standards apply to all three.
- Safety is the overarching goal and should guide employer action where there is a lack of clarity.
- If employers are complying with CDC provisions, the more rigid standard applies.
- Employers cannot discriminate based on raising/reporting concerns, voluntary PPE use, reasonable work refusals.
- Includes cases where an employee may report or raise concerns on social media whether issues raised are true or not.
- In cases where there is a work refusal, the employer must be given a chance to resolve the issue.
Low hazard category requirements:
- Employees have no required contact within 6 feet of known/suspected cases.
- There is minimal contact with others, such as in an office setting.
- This includes most businesses and office environments.
Low hazard requirements include employees limiting contact through, but not limited to (See page 13 of the Emergency Standards):
- Minimal contact is established through engineering controls
- Floor-to-ceiling barriers
- Staggered shifts
- Remote delivery
- Mandated social distancing
- Face coverings
Medium hazard category requirements apply to employers with the following:
- Employees have moderate contact with others within 6 feet.
- May include: food processing, agricultural, commercial transportation, manual labor, school campuses, daycare/after school care, restaurants/bars, grocery/convenience stores, food banks, drug stores, etc.
Medium hazard requirements include, but not limited to (See Page 35 of Emergency Standards for full list):
- When feasible, telework, staggered shifts, eliminate personal meetings/travel, physical barriers, telework and staggered shifts, social distancing, remote or curb-side delivery, reconfigure spaces where employees congregate.
- Infectious disease and preparedness response plans are required, except for businesses with less than 10 employees.
- Plan must include: designated person for implementation, employee involvement, hazard assessment by job tasks and potential exposure sources, employees with other jobs, employees with individual risk factors, outbreak contingency plans to cover absenteeism, enhanced workplace control measures, cross training/continued operation plans, interrupted supply chains/delayed deliveries
- Resources will become available to help businesses prepare these plans.
- Prescreening/survey before work shifts is required, but does not included taking an employee’s temperature.
- Face coverings must be provided to all visitors.
- Written certification that workplace hazards have been requested
- Requirements for air handling systems, compliance with manufacturer instructions and other requirements are included
- Training on CDC guidelines required within 30 days of the effective date
(For a full list of classifications requirements for high and very high risk tasks, See page 9 of the Emergency Standards)
Take-aways for business:
- CDC compliance may not be enough.
- There is little recourse for employers with regard to an employee’s use of print, online or social media to raise complaints.
- There are concerns with conflicts between the executive orders and emergency standards.Expect more legislative action on these issues.