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Employer Update: Virginia’s New COVID-19 Workplace Safety Rule

Updated on: 08-21-2020

On July 27, the Virginia Department of Labor and Industry published the new COVID-19 Workplace Safety Rule in the Richmond Times Dispatch. This means that the Rule, which we previously summarized here, is now in effect and implementation deadlines are approaching quickly.

Virginia employers should already be taking steps to ensure compliance with the Rule and its upcoming deadlines, such as:

  • Assessing the workplace for hazards and job tasks that can potentially expose employees to COVID-19;
  • Classifying each job task according to very high, high, medium, or lower risk levels of exposure (the risk levels were previously summarized here);
  • Informing and encouraging employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness;
  • Developing and implementing policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19 and no alternative diagnosis has been made, as well as to notify employees who may have been exposed to COVID-19;
  • Ensuring employees or other persons (such as subcontractors, contract or temporary employees, or visitors) known or suspected to be infected with COVID-19 to report to or remain at the work site, or engage in work at a customer or client location until cleared for return to work;
  • Developing and implementing policies and procedures for employees known or suspected to be infected with COVID-19 to return to work;
  • Updating sick leave policies to be consistent with the Families First Coronavirus Response Act and public health guidance, and making sure that employees are aware of these policies; and
  • Developing and implementing policies and procedures for physical distancing, cleaning and disinfecting, and protective equipment.

August 26, 2020 Deadline – Training

The Rule’s training requirements for employers with hazards or job tasks classified as very high, high, or medium exposure risk take effect on August 26, 2020. This means that these employers must provide training to all employees working at the place of employment, regardless of employee risk classification. This training must cover:

  • The requirements of the Rule;
  • The mandatory and non-mandatory recommendations in any CDC guidelines or Virginia guidance documents the employer is complying with, if any, in lieu of a provision of this Rule;
  • The characteristics and methods of spread of the SARS-CoV-2 virus;
  • The signs and symptoms of the COVID-19 disease;
  • Risk factors of severe COVID-19 illness with underlying health conditions;
  • Awareness of the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus;
  • Safe and healthy work practices including physical distancing, disinfection procedures and frequency, ventilation, noncontact methods of greeting, etc.;
  • Personal Protective Equipment:
    • When PPE is required;
    • What PPE is required;
    • How to properly don, doff, adjust, and wear PPE;
    • The limitations of PPE;
    • The proper care, maintenance, useful life, and disposal of PPE;
    • Heat-related illness prevention including the signs and symptoms of heat-related llness; and
  • The anti-discrimination provisions of the Rule.

The DOLI has provided a sample Medium Risk Level Training Presentation.

Employers with hazards or job tasks classified as very high, high, or medium exposure risk must verify compliance with the Rule by preparing and maintaining a written certification record containing the name (or other unique identifier) of the employee trained, the trained employee’s signature (wet ink or electronic), the date(s) of training, and the name(s) of the person(s) conducting the training. The DOLI has provided a sample Training Certification Form.

Employers with hazards or job tasks classified as lower risk must provide written or oral information to their employees. This training need only cover:

  • The requirements of the Rule;
  • The characteristics and methods of spread of the SARS-CoV-2 virus;
  • The signs and symptoms of the COVID-19 disease;
  • Awareness of the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus;
  • Safe and healthy work practices including physical distancing, sanitation and disinfection practices; and
  • The anti-discrimination provisions of the Rule.

The DOLI has provided sample Lower Risk Training Information.

When employers have reason to believe that any employee who has already been trained does not understand the training they must retrain that employee. Circumstances where retraining is required include changes in the workplace, exposure to COVID-19, changes in job tasks that render the previous training obsolete, changes in the employer’s Infectious Disease Preparedness and Response Plan, or when an employee’s knowledge or use of workplace control measures indicate that the employee has not retained the requisite understanding or skill.

September 25, 2020 Deadline - Infectious Disease Preparedness and Response Plan

The Rule’s requirements for employers to develop and implement a written infectious disease preparedness and response plan takes effect on September 25, 2020. This requirement only applies to employers with hazards or job tasks classified as very high and high exposure risk, as well as medium exposure risk if the employer has 11 or more employees.

When developing an infectious disease preparedness and response plan, employers must consider and address the level(s) of risk associated with various places of employment, the hazards employees are exposed to, and job tasks employees perform at those sites. Employers must also provide for employee involvement in development and implementation of the plan.

The infectious disease preparedness and response plan must contain:

  • Where, how, and to what sources of SARS-CoV-2 or COVID-19 might employees be exposed at work, including:
  • The general public, customers, other employees, patients, and other persons;
  • Known or suspected to be infected persons or those at high risk; and
  • Situations where employees work more than one job with different employers and encounter hazards or engage in job task that present a very high, high, or medium level of exposure risk;
  • As permitted by law, including HIPPA, employees’ individual risk factors;
  • Engineering, administrative, work practices, and PPE controls necessary to address those risks;
  • Contingency plans for situations that may arise as a result of outbreaks, such as:
    • Increased rates of employee absenteeism;
    • The need for physical distancing, staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing workplace control measures;
    • Options for conducting essential operations with a reduced workforce, including cross-training employees across different jobs in order to continue operations or deliver surge services;
    • Interrupted supply chains or delayed deliveries;
  • Basic infection prevention measures to be implemented, such as:
    • Promoting frequent and thorough hand washing, including by providing employees, customers, visitors, the general public, to the place of employment with a place to wash their hands or hand sanitizers;
    • Maintaining regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment;
    • Establishing policies and procedures for managing and educating visitors to the place of employment;
  • Procedures for the prompt identification and isolation of employees known or suspected to be infected with COVID-19 away from work;
  • Procedures for dealing with outside businesses, including, but not limited to, subcontractors that enter the place of employment, as well as other persons accessing the place of employment, to ensure compliance with the requirements of the Rule and the employer’s plan; and
  • Identification of the mandatory and non-mandatory recommendations in any CDC guidelines or Virginia guidance documents the employer is complying with, if any, in lieu of a provision of the Rule.

Employers must designate a person to be responsible for implementing their plan. This person shall be knowledgeable in infection control principles and practices as the principles and practices apply to the facility, service, or operation.

The DOLI has provided an Infectious Disease Plan Template.

Takeaways

Employers need to begin preparing and implementing the trainings and response plans right away to avoid stiff civil financial penalties and potential closure of businesses.

The DOLI has published FAQs that provide guidance on the scope and effective dates for required trainings on infectious disease preparedness and response plans. Additional Education and Training materials can be found on the DOLI’s website.

Josh Schmand is a litigation and employment attorney who works on complex business, corporate, and commercial disputes, as well as employment matters, advising clients on the risks and benefits of litigation, preparing for trial when needed, and serving as a determined advocate. For more information, contact Josh at jcschmand@lerchearly.com or (301) 347-1273.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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