Workplace Safety Standards Related to COVID-19

On February 15, 2021, the Virginia Department of Labor and Industry issued final regulations related to COVID-19 workplace safety standards. The rules were effective January 27, 2021, and apply to all employers subject to the authority of the Virginia Occupational Safety and Health Program (VOSH, which is the state version of OSHA). The purpose of the standards is to help control, prevent and mitigate the spread of COVID-19.

Employers must adopt and maintain the following standards until VOSH declares the end of the pandemic.

• Employers must inform employees on how to self-monitor for signs and symptoms of COVID-19 and encourage employees to do so.
• Employers may require COVID-19 testing as a condition to return to work. Employees cannot be required to pay for the cost of testing, though the group health plan may provide benefits. An employer may not require an antibody test as a condition to return work as the agency believes that is has not been determined that an individual with a positive test result is immune from infection.
• Employers shall establish and implement policies and procedures that ensure employees observe physical distancing while on the job and during paid breaks on the employer's property, including the use of verbal announcements and signage promoting physical distancing. Limit access for non-employees. Close or control access to common areas, breakrooms and lunchrooms.
• Make handwashing facilities and hand sanitizer available to employees.
• Require face coverings when six feet of distance between individuals is not possible, including incidental events such as passing in a hallway. An exception must be made for any employee for whom doing so would be contrary to the employee's health or safety because of a medical condition.
• All common spaces, including bathrooms (including port-a-potties), frequently touched surfaces and doors, shall at a minimum be cleaned and disinfected at least once during or at the end of the shift. Where multiple shifts are employed, such spaces shall be cleaned and disinfected no less than once every 12 hours.
• All shared tools, equipment, workspaces and vehicles shall be cleaned and disinfected prior to transfer from one employee to another.
• Employers shall develop and implement policies and procedures for employees known or suspected to be infected to return to work. Symptomatic employees are excluded from returning to work until all three of the following conditions have been met:
  • The employee is fever-free (below 100.0° F) for at least 24 hours, without the use of fever-reducing medications
  • Respiratory symptoms, such as cough and shortness of breath have improved
  • At least 10 days have passed since symptoms first appeared
• Asymptomatic employees who are known to be infected with COVID-19 must not return to the worksite until 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.
• Employers shall develop and implement policies and procedures for employees to report when they are experiencing signs or symptoms consistent with COVID-19, and no alternative diagnosis has been made.
• If an employee or other person is known or suspected to be infected with COVID-19, the employer cannot permit that individual to remain at the worksite or customer location.
• Employers must discuss with subcontractors and companies that provide contract or temporary employees the requirement to exclude from work employees or other persons (e.g., volunteers) who are known or suspected to be infected with COVID-19, and the importance of this requirement.
• To the extent permitted by law, including HIPAA, employers shall establish a system to receive reports of positive tests by employees, subcontractors, contract employees and temporary employees who were present at the place of employment within two days prior to symptom onset (or positive test if the employee is asymptomatic) until 10 days after onset (or positive test). Following such a report, the employer must notify its employees who may have been exposed, as well as employees of another employer who were present at the worksite during the same period. The notification must be made within 24 hours of knowledge. The identity of the infected person must be kept confidential.
  • Following a report of a positive test by an employer who had been at the worksite, the employer must also notify the building or facility owner. The owner must take the necessary steps to sanitize the common areas of the building and notify other tenants.
  • When an employer has received two or more confirmed COVID-19 cases (of its own employees) within a 14 days, the employer must notify the Virginia Department of Health. For this purpose only, the employer must report the individual's name, date of birth and contact information. Such notification must be made within 24 hours of knowledge.

Additional requirements apply based on the risk level of exposure to COVID-19 in the workplace. For example, healthcare delivery is considered high risk level. Such an institution would have additional requirements related to ventilation and filtration systems.

While this issue is generally outside the scope of Benefits Compliance, we recognize the value of this information for our clients and encourage employers to work with outside counsel in developing policies and procedures in compliance with the state standards.

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