This week Virginia became the first state in the country to adopt new temporary workplace standards for the COVID-19 pandemic.  The Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve an emergency temporary standard on infectious disease prevention. These requirements are now in effect and will remain in effect for six months and can be made permanent through the process defined in state law, and will sunset upon expiration of the Governor’s State of Emergency.

On Wednesday, Retail Merchants members were invited to participate in a webinar with Courtney Malveaux, Principal at Jackson Lewis P.C. where he represents employers in OSHA citations, regulatory and employment matters, as well as government affairs. Additionally, he has served as Virginia Labor Commissioner and on the Virginia Safety and Health Codes Board, in addition to being the President of the National Association of Government Labor Officials.

During the webinar, Malveaux outlined key points of impact for employers to be aware of including general requirements for all private employers which include:

  • Hazard assessment for all job tasks (“Very High,” “High,” “Medium” and “Low”)
  • Policies/procedures for employees to report COVID symptoms
  • Prohibit known/suspected cases at worksites
  • “Flexible” sick leave policies
  • System to receive reports of positive tests (within past 14 days) by:
    • Employees (including temps and contract employees)
    • Subcontractors
  • Mandatory handwashing stations and hand sanitizer “where feasible”
  • Employers must assess risk levels of employees and suppliers before entry
  • Building and facility owners must notify employer tenants of COVID-19 cases
  • Employers must notify:
    • VA Dept. of Health of COVID-19 positive tests; and
    • VA Dept. of Labor and Industry (DOLI) of “hot spots”: 3 COVID-19 positive tests within a two-week period
  • Hazard assessments for all job tasks
  • Infectious disease preparedness and response plans within 60 days

The new Virginia Standard classifies businesses as Low Hazard, Medium Hazard, and High Hazard with additional requirements dependent upon the categorization.

Low Hazard employers include those with:

  • No required contact within 6’ of known/suspected cases
  • Minimal contact with others (e.g., office setting)
  • Minimal contact through engineering controls, such as:
    • Floor-to-ceiling barriers
    • Telecommuting
    • Staggered shifts
    • Remote delivery
    • Mandatory social distancing
    • Face coverings

Medium Hazard employers are those with minimal contact within 6’ of others and may include:

  • Poultry/seafood/meat processing
  • Agriculture
  • Manual labor
  • Commercial transportation
  • School campuses
  • Daycare/after school care
  • Restaurants/bars
  • Grocery/convenience stores
  • Food banks
  • Drug stores/pharmacies
  • Manufacturing settings
  • Construction (indoor and outdoor)
  • Correctional facilities
  • Work performed in customer premises (homes or businesses)
  • Retail stores
  • Call centers
  • Package processing settings
  • Veterinary settings
  • Personal care, personal grooming, salons and spas
  • Sports venues
  • Homeless shelters
  • Fitness, gym and exercise facilities
  • Airports
  • Train/bus stations
  • Healthcare settings that does not involve exposure to known/suspected cases

Medium Hazard employers are required to:

  • When feasible:
    • Telework
    • Staggered shifts
    • Eliminate personal meetings, travel
    • Physical barriers
    • Implement telework and staggered shifts
    • Social distancing
    • Deliver services/products remotely or by curbside pickup or delivery
    • Reconfigure spaces where employees congregate
  • Develop an Infectious Disease Preparedness and Response Plan (there’s an exception for ten or fewer employees)
    • Designate a person for implementation of said plan
    • Employee involvement
    • Complete a hazard assessment by job tasks and potential exposure sources
    • Identify employees with other jobs
    • Employees’ individual risk factors
    • Include outbreak contingency plans to cover:
      • Absenteeism
      • Enhanced workplace control measures
      • Crosstraining/continued operation plans
      • Interrupted supply chains/delayed deliveries
    • Prescreening/surveying before each work shift
    • Provide face coverings to visitors with suspected cases and employees who can’t social distance
    • Infection prevention to include:
      • Handwashing
      • Cleaning/disinfecting
      • Managing/educating visitors
    • Identification/isolation of known/suspected cases
    • Plan to address subcontractors, temp/contract employee providers, other visitors
    • Anti-retaliation protections for employees who raise concerns
    • Assess, require, and communicate PPE use beyond General Industry
    • Written certification to verify workplace hazard assessment that:
      • Identifies evaluated workplace
      • Certifies evaluation completion with date(s)
    • Ensure air handling systems that:
      • Are maintained according to manufacturers’ instructions
      • Comply with minimum American National Standards Institute (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards
    • Employee COVID training within 30 days on:
      • New VOSH standard
      • CDC guidelines (mandatory and non-mandatory)
      • Signs/symptoms/methods of transmission
      • Risk factors for underlying health conditions
      • Asymptomatic/Pre-symptomatic spread
      • Safe and healthy work practices
      • PPE
      • Anti-discrimination
      • Infectious Disease Preparedness and Response Plan
      • Retraining

Additional requirements are further outlined for High and Very High Hazard Employers in the full Virginia Standard text.

Read the full 47 pages of regulations HERE or view the webinar HERE. 

Courtney M. Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis. P.C. He co-leads the firm’s Workplace Safety and Health Practice Group. His practice focuses on representing employers cited by the Occupational Safety and Health Administration and other regulatory agencies, oftentimes following catastrophic incidents. Learn more or contact him HERE.

The information contained in this post is meant to be educational and in no way meant to imply legal advice.