Part 1 of a Series By Kristina Keech Spitler, Esq.
On July 27th, 2020, the “New Emergency Temporary Standard – Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19” by the Virginia Department of Labor and Industry (“DOLI”) became effective and applies to virtually all employers in Virginia. It is the first of its kind in the nation as part of a state’s response to the national pandemic.
The new Emergency Temporary Standard (“ETS” or “Standard”) sets forth mandatory actions that private and public employers are required to take to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes the coronavirus disease 2019 (“Covid-19”) to and among employees and employers. This standard will generally be effective for six months starting July 27, 2020. However, it is likely that a permanent standard/regulation will be adopted in the interim after open to further public comments.
Classify Each Job Task/Position
The ETS requires all employers to assess the workplace jobs or positions for hazards and job tasks that can potentially expose employees to Covid-19 and classify each job task/position into one of four categories of exposure risk levels: very high, high, medium, and lower. While review of specific definitions in the Standard for each risk level is necessary, here are some examples to help give businesses an idea of the types of job tasks that may fall into the different categories:
- Very High – healthcare employees performing aerosol-generating procedures, healthcare/lab personnel, and morgue employees who are working with known or suspected Covid-19 patients.
- High – Healthcare delivery and support, first responders, medical transport, and mortuary employees who are exposed within six feet of known or suspected persons with Covid-19.
- Medium– Employees exposed within six feet of other employees, customers, or other persons known, unknown, or suspected of Covid-19.
- Lower – Employees not exposed within six feet frequently or close contact with persons known, unknown, or suspected of Covid-19.
Pursuant to the ETS, the employer then has certain actions it should take for the safety and welfare of its employees depending upon which level of risk its employees fall, including creating an infectious disease preparedness and response plan and provide certain training within specified time frames.
Develop Policies for Employees to Report When They are Experiencing Possible Covid-19 Symptoms
The ETS also requires employers to develop and implement policies and procedures for employees to report when they are experiencing possible Covid-19 symptoms or have tested positive, a system for how they report this to their employer, a plan for what to do if an employee tests positive or has symptoms, and under what circumstances can that employee return to work safely. Employers must inform employees of the methods of self-monitoring for symptoms of Covid-19 if they suspect possible exposure or experiencing signs of an oncoming illness and shall not permit those who are known or suspected of having it to report to or remain at work. Employers must also talk with subcontractors and companies that provide contract or temporary employees about the importance of known or suspected to be infected persons staying home and that it will not allow such persons to report to or remain at work.
Employers Must Notify its Employees Within 24 Hours of Discovery of Possible Exposure
The ETS also requires that within 24 hours of discovery of possible exposure, employers must notify its employees, other employers whose employees were present at the worksite, the building/facility owner, and the Virginia Department of Health, of possible exposure at the worksite, while keeping the identity of the person confidential. In the event that three or more employees present at the place of employment test positive during a 14-day period, the employer is also required to notify Virginia DOLI within 24 hours of discovery.
Building/Facility owners, within 24 hours of discovery of possible exposure, are to i) require all employer tenants to notify them of any positive Covid-19 tests for any employee or resident in the building, ii) take necessary steps to sanitize common areas in the building; and iii) notify all employer tenants in the building of one or more cases discovered in the building and identify the floor or work area where the case was located (while keeping the identity of person or persons confidential).
Employers Shall Ensure that Sick Leave Policies are Flexible and Consistent with Public Health Guidance
The ETS also provides that to the extent feasible and permitted by law including but not limited to the Family First Coronavirus Response Act (“FFCRA”), employers shall ensure that sick leave policies are flexible and consistent with public health guidance and that employees are made aware of these policies. It is not clear exactly what type of flexible sick leave policies are required by this section. Certainly, employers covered by FFCRA must comply with FFCRA’s leave requirements. In addition, employers should comply with their current sick leave policies as well as leave under Family Medical Leave Act, if applicable.
The Americans with Disabilities Act may also apply such that additional leave may be a form of a reasonable accommodation for a person with a disability. ETS does not specify that employers must provide additional sick leave or more flexible sick leave. However, further guidance may be provided. Employers and employees should also be aware the ETS makes clear that nothing in the standard shall prohibit an employer from permitting an employee known or suspected of having Covid-19 from working remotely (teleworking) or other forms of work isolation that would not result in potentially exposing other employees to the virus.
Virginia DOLI has some resources regarding ETS available on its website at https://www.doli.virginia.gov/covid-19-outreach-education-and-training/.
Should you need any assistance in understanding, implementing, or complying with the Emergency Temporary Standard, we stand ready to assist you.
Please visit our site Employment Law or call attorney Kristina Spitler at (703) 369-4738.