On July 15, 2020, Virginia became the first state in the country to adopt Coronavirus-related workplace safety mandates. The new standards, which take immediate effect when published during the week of July 27, 2020, are available here.
The emergency temporary standards are designed to establish requirements for employers to control, prevent, and mitigate the spread of COVID-19 to and among employers and employees. Notably, these standards apply to every employer in the Commonwealth of Virginia whether public or private. The standards apply differently based on whether the employee’s job tasks fit into four different risk categories:
- Very High;
- High;
- Medium;
- and Lower.
Most medical professionals perform tasks with “very high” or “high” exposure risk hazards including intubation, dental procedures, assisted living care and chiropractic services. Employees with exposure risk in places of employment that require more than minimal occupational contact inside six feet with other employees or the public including meat processing, restaurants and bars, and gym facilities are classified as “medium.” Finally, employees who have minimum occupational contact with other employees and the general public, such as in an office setting, are classified as being “lower” risk.
All employers must, among other things:
- Assess their workplace for hazards and job tasks that can potentially expose employees to COVID-19;
- Classify each job tasks according to the hazards employees are potentially exposed to;
- Encourage employees to self-monitor for signs and symptoms of COVID-19;
- Establish a system to notify employees who may have been exposed within 24 hours of discovery of their possible exposure;
- Control or close access to common areas, break rooms, and lunch rooms;
- Ensure that employees comply with VOSH sanitation and disinfecting procedures applicable to the employer’s industry; and
- Utilize telework and staggered shifts where feasible.
Employers’ responsibilities under the standards vary based on employees’ risk designations. Employers with hazards or job tasks classified as “very high” and “high” “shall develop and implement a written Infectious Disease Preparedness and Response Plan. Employers with eleven (11) or more employees and who have jobs classified as “medium” must also develop a written plan.
For the vast majority of white-collar employers in Northern Virginia, employees will be classified as lower risk. This is due to existing telework policies, staggered shifts, and adherence to social distancing. However, some jobs that are forward facing like a receptionist could qualify as “medium” depending on how much interaction with other employees and the general public those jobs entail.
In another win for employees, §16VAC25-220-90 prohibits an employer from discharging or discriminating against an employee because the employee has exercised rights under the safety and health provisions of the standard. Further, employers may not “discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.” As such, employees can publicly complain about their employers’ Coronavirus responses and employers cannot do anything.
Broderick C. Dunn and John C. Cook are partners in the Fairfax firm of Cook Craig & Francuzenko, PLLC. Their practice includes the representation of executives, employees, and small businesses in employment law matters and civil litigation. Follow them on Twitter @JohnCookVA and @broderick_dunn and connect with them on LinkedIN (https://www.linkedin.com/in/broderickdunn/) and (https://www.linkedin.com/in/john-cook-2300514/)
