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Client Alert: VDOLI COVID-19 Workplace Safety Rules

On Wednesday, July 15, 2020, the Virginia Safety and Health Codes Board (“Board”) of the Virginia Department of Labor and Industry (“VDOLI”) met to discuss and adopt workplace safety regulations (16 VAC 25-220) proposed by VDOLI on June 12, 2020 in response to the SARS-CoV-2 virus (“Virus”) that causes COVID-19. This meeting was the final in a series of meetings held by the Board to discuss the originally proposed regulations. During this time, multiple amendments to these regulations were proposed by Board members.

The Board voted to adopt amended regulations that cover all Virginia employers covered by the Virginia Occupational Safety and Health Program. All applicable employers must follow mandatory requirements that include the following:

1. First, assess the workplace for any hazards and tasks that may expose employees to the Virus;
2. After the assessment, classify each job task according to its risk level (i.e. “very high risk,” “high risk,”  “medium risk,” or “lower risk”);
3. Develop and implement procedures for employees to report experiencing COVID-19 symptoms;
4. Prevent employees who have tested positive or are experiencing symptoms of COVID-19 from remaining at or returning to work;
5. Notify all employees and the Virginia Department of Health if an employee tests positive for the Virus and was present at the workplace within 14 days of the positive test;
6. Develop and implement strategies to determine whether to allow a symptomatic or asymptomatic employee to return to work;
7. Develop and implement procedures and guidelines to ensure physical distancing of at least six feet at all times in the workplace; and
8. Develop and implement procedures and guidelines for frequent sanitization of the workplace.

For any workplaces with job tasks considered “very high risk,” “high risk” or “medium risk” employers must follow certain requirements in addition to the mandatory requirements listed above. “Very high risk” workplaces are those with job tasks having high potential for employee exposure to known or suspected sources of the Virus and COVID-19 (e.g. specific medical, postmortem, or laboratory procedures.) 

“High risk” workplaces are those with job tasks having high potential for employee exposure inside six feet with known or suspected sources of the Virus (e.g. healthcare delivery, care, and support services; first responder services; medical transport services; and mortuary services). 

“Medium risk” workplaces are those with job tasks requiring more than minimal occupational contact inside six feet with other employees or the general public who may be infected with the Virus (e.g. poultry and meat processing; agriculture; transportation; education; retail; correctional facilities; and recreation).

Employers of “very high risk,” “high risk” and “medium risk” workplaces must do the following:

1. Ensure appropriate air-handling systems are installed and maintained;
2. Prescreen every employee before the start of their shift for possible symptoms;
3. Install physical barriers to ensure physical distancing and limit access to non-employees;
4. Implement flexible working arrangements (e.g. teleworking, staggered shifts) and reconfigure common areas to decrease workplace density;
5. Ensure psychological and behavior support is available free to the employee (NOTE: only for “very high risk” and “high risk” workplaces);
6. Provide personal protective equipment (PPE) if a hazard for the Virus or COVID-19 exists;
7. Provide disinfecting materials for constant sanitization and hand-washing; and
8. Develop and implement training identifying the symptoms and risks of COVID-19 and the provisions in the adopted regulations.

Along with the general mandatory requirements and additional requirements, employers of “very high risk,” “high risk” and “medium risk” workplaces must prepare an Infectious Disease Preparedness and Response Plan (“Preparedness Plan”) detailing the policies and procedures developed by the employer in complying with these regulations and creating contingency plans in case of a workplace outbreak. 

For workplaces with job tasks that are considered “lower risk,” these employers must abide by the mandatory requirements applicable to all employers, they do not need to comply with the additional requirements for “very high risk,” “high risk” and “medium risk” workplaces. “Lower risk” workplaces are generally in office building settings with minimum contact with other employees or the general public. 

Any employer can be exempt from these regulations if they choose to follow recommended CDC guidelines providing equal protection to or greater protection than these regulations. An employer’s actual compliance with recommended CDC guidelines will be considered evidence of good faith in any enforcement proceeding based on these regulations. 

The regulations will take effect upon publication in Richmond newspaper of general circulation (likely the Richmond Times-Dispatch) during the week of July 27. Employers must develop and implement training within 30 days. This excludes training on the Preparedness Plan, which must be implemented within 60 days. These regulations will last for six months unless they are made permanent or extended. 

While these regulations do not apply to property owners’ associations (“POAs”) in relation to property owners, they do apply to POAs in relation to their employees. Just like other employers, POAs are covered by these regulations. Due to their constant interaction with the public (i.e. property owners), it is likely POAs, as employers, would fall under the “medium risk” category.

For further guidance, please contact a member of Whiteford’s Labor & Employment Team for labor and employment related questions. For guidance on how this affects community associations, please contact a member of Whiteford’s Community Associations Team. 

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The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.