As you may be aware, the Virginia Department of Labor and Industry recently effectuated an Emergency Temporary Standard (ETS) for Infectious Disease Prevention to combat the SARS-CoV-2 virus and COVID-19 within Virginia workplaces.
The standard applies to virtually all places of employment within Virginia and requires employers to implement various protective measures within the workplace. Among other things, it requires employers to conduct a workplace hazard assessment to evaluate hazards that employees are potentially exposed to based on their job tasks. Employers must determine whether their employees fall in the “lower risk,” “medium risk,” “high risk” and “very high risk” categories based on the criteria set forth in the ETS.
Many of our clients will only have employees who fall within the lower risk category. However, employers with health care, manufacturing or client-facing operations may have employees who fall within one of the heightened risk categories.
The Lower Exposure Risk category includes jobs that do not require contact inside six feet with persons known to be, or suspected of being, or who may be infected with SARS-CoV-2. Employees in this category have minimal occupational contact with other employees, other persons, or the general public, such as in an office building setting; or are able to achieve minimal occupational contact through the implementation of engineering, administrative and work practice controls.
The Medium Exposure Risk category includes jobs that require more than minimal occupational contact inside six feet with other employees, other persons, or the general public who may be infected with SARS-CoV-2, but who are not known or suspected to be infected with the SARS-CoV-2 virus.
The High Exposure Risk category includes jobs that have high potential exposure inside six feet to known or suspected sources of COVID-19.
The Very High Exposure risk category includes job tasks in places of employment with high potential for employee exposure to known or suspected sources of COVID-19 during specific medical, postmortem or laboratory procedures.
The ETS includes a list of requirements that all employers must implement, regardless of the exposure risk level.
For example, employees must (this list is not exhaustive):
- Develop and implement policies and procedures for employees to report when they experience symptoms of COVID-19,
- Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of the policies,
- Comply with various reporting procedures when informed of an employee who has tested positive for the SARS-CoV-2 virus,
- Develop and implement return to work policies that comply with various approved approaches set forth by the ETS,
- Develop and implement physical distancing requirements,
- Restructure common spaces such as breakrooms and lunchrooms to allow for physical distancing,
- Comply with sanitization and disinfecting procedures, and
- Provide appropriate PPE to employees.
However, there are additional requirements for employers who have employees exposed to “medium risk,” “high risk,” and “very high risk” job tasks. For example, such employers are required to develop and implement an Infectious Disease Response Plan (The DOLI provides a model policy to use). High, and very high risk employers—along with medium risk employers with 11 or more employees—must follow enumerated training requirements set forth in the ETS as well.
The Department of Labor and Industry has provided various guidance documents for employers to implement the requirements of the ETS which can be found here: https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.
Should you have any questions regarding your workplace risk evaluation, or if you need assistance implementing policies and training, please feel free to contact a member of our employment law team.