US: Virginia becomes first state to adopt COVID-19 Emergency Temporary Standard

On July 27, 2020, the first state “Emergency Temporary Standard” (ETS) for COVID-19 went into effect. The ETS requires employers in the state to develop and implement COVID-19 prevention and control measures in the workplace. The ETS is in effect for six months, although this period could be shortened if the Virginia State of Emergency expires, a permanent standard is enacted or the Virginia Safety and Health Codes Board repeals it.

Employers covered by the Emergency Temporary Standard

The ETS applies to all public and private employers and places of employment in Virginia, with the exception of federal employers, private maritime employers, and other federal enclaves where the state has ceded jurisdiction.

Mandatory requirements for all covered employers

The ETS provides detailed workplace safety mandates, including:

• Assessing the workplace for conditions that may expose employees to COVID-19 and classifying employees by risk level based on workplace hazards and job tasks.
• Training employees on self-monitoring for signs and symptoms.
• Developing and implementing policies and procedures for employee reporting of symptoms.
• Preventing employees or other person known or suspected to have COVID-19 from entering or remaining at the workplace until they have been cleared to return.
• Ensuring that sick leave policies, including the Families First Coronavirus Response Act, are in place and that employees are informed of these policies.
• Notifying all employees of a positive within 24 hours if the impacted coworker was in the workplace in the past 14 days.
• Notifying the Virginia Department of Labor and Industry within 24 hours of three or more employees testing positive within a 14-day period.
• Developing and implementing return to work policies and procedures.

Similar to the OSHA/CDC COVID-19 guidelines, all covered Virginia employers must ensure that employees practice social distancing, require appropriate respiratory or face coverings, provide hand sanitizer, encourage frequent hand washing, disinfect commonly used areas and equipment and limit occupancy of common areas or rooms for social distancing.

Requirements for hazards or job tasks classified as “Very High” “High” “Medium” and “Lower” exposure risk

The ETS includes additional engineering, administrative and work practice controls for each level of worker exposure risk. The ETS divides hazards and job tasks into four exposure risk levels: Very High, High, Medium, and Lower.

“Very High” means workplaces with a high potential for exposure to known/suspected sources of COVID-19. Jobs in this category include medical, postmortem, and  laboratory procedures. “High” means workplaces with high probability that an employee will come within six feet of people known or suspected to be infected with COVID-19, such as healthcare workers, first responders and mortuary services. These employers must:

• Implement appropriate air handling systems.
• Place hospitalized patients with known or suspected cases of COVID-19 in an airborne infection isolation room.
• Restrict public access.
• Screen employees prior to entry.
• Offer enhanced medical monitoring of employees during COVID-19 outbreaks.
• Provide free psychological and behavioral support for employee stress.
• Supply PPE to employees.
• Provide employee training on the requirements of the ETS and the signs and symptoms of COVID-19 within 30 days of the effective date.
• Develop and implement a written Infectious Disease Preparedness and Response Plan within 60 days of the effective date.

“Medium” means workplaces involving work within six feet of other employees or those with regular contact with the general public, such as grocery stores and pharmacies, poultry and meat processing, agriculture and educational settings. These employers must:

• Implement appropriate air-handling systems.
• Where feasible, screen or survey employees prior to entry.
• Provide face coverings to non-employees suspected of having COVID-19.
• Implement flexible worksites and work hours.
• Increase social distancing for employees and customers to six feet.
• Where feasible, install physical barriers between employees and customers.
• Provide employee training on the requirements of the ETS and the signs and symptoms of COVID-19 within 30 days of the effective date.
• For businesses with more than 10 employees, develop and implement a written Infectious Disease Preparedness and Response Plan within 60 days of the effective date.

“Lower” means workplaces with no close contact with the general public or other persons known/suspected to be infected with COVID-19, such as office buildings. These employers must:

• Install floor to ceiling physical barriers.
• Stagger work shifts and provide remote work and remote deliver services.
• Provide written or oral information to employees on the hazards, characteristics and symptoms of COVID-19 and measures to minimize exposure.

Anti-discrimination provisions

The ETS also prohibits employers from discriminating against employees exercising their rights under the ETS. Employers cannot discharge or otherwise discriminate against an employee who voluntarily provides and wears his or her own PPE. Employers also cannot discharge or discriminate against an employee who raises a reasonable concern about infection control related to COVID-19.

Parting Thoughts

There is really nothing in this ETS that was not already the subject of federal and state guidance on COVID-19 in the workplace. Nonetheless, Virginia — no doubt influenced by political considerations and at the behest of the plaintiff bar — has adopted this mandatory regimen that almost certainly exposes employers to civil lawsuits and financial penalties for any purported failure to comply. We also can anticipate copycat states, as Oregon OSHA is considering an ETS and is accepting comments through August 17.