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Labor Law: Virginia businesses will have to follow safety rules to curb coronavirus in workplaces
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Labor Law

Labor Law: Virginia businesses will have to follow safety rules to curb coronavirus in workplaces

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Virginia employers take note: new mandatory workplace safety rules have been adopted and you should take action now to comply.

The state regulations are designed to provide mandates for safely operating a business, depending on the risk of exposure to the coronavirus for employees working in certain industries.

Virginia’s rules will go into effect shortly after being published in the Richmond Times-Dispatch – the regulations are in the newspaper on Monday July 27 starting on Page B6. The new rules will last for at least six months.

The 35 pages of regulations contain requirements for all employers, and training and infectious control plans for certain employers.

Most businesses will need to complete a workplace hazard assessment and develop and implement a written infectious disease preparedness and response plan in addition to providing training to employees.

No employee shall be discriminated against due to expressing safety concerns in the workplace. And workers are protected as whistleblowers if they were to report violations, including on social media posts.

Every employer should access the regulations, read them carefully and fully comply. The regulations provide a clear roadmap for opening safely, and can be accessed at doli.virginia.gov.

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Employers should determine where their industry and employees fall within the spectrum of risk exposure — “very high,” “high,” “medium” and “low” risk — and then carefully comply with the regulatory mandates consistent at each risk level. Employers in the very high and high risk categories are most strict.

Exposure risks are determined by categorizing work environment and hazards:

  • Very high risk employers include those that use “aerosol-generating procedures” like intubation and cough induction procedures and some dental procedures as well as those that collect or handle specimens from a known or suspected COVID-19 individual or perform an autopsy on such individuals.
  • High risk industries include jobs with high potential for employee exposure to others within 6 feet with known or suspected sources of COVID-19, including virtually anyone working in health care, first responders, medical transport services and mortuary services.
  • Most other employers will fall into the medium risk category. These include healthcare workers where no known or suspected risk of COVID-19 exits.

It also includes industries such as agriculture, food processing plants and transportation. It also includes educational settings such as schools, colleges and universities; daycare and afterschools; restaurants and bars; grocery stores; retail establishments; sports and entertainment venues; gyms; airports; and salons.

  • Low risk employers include those with minimal contact with others and those where workers can telework or where a physical distance from other employees and customers can be maintained.

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Regardless of risk level, all employers must first conduct an exposure assessment and determination, establish notification requirements and assess employee risk of exposure, which includes hazards and job tasks that can potentially expose employees to the virus.

Employers need to classify each employee according to potential exposure to hazards.

Employees are encouraged to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of an oncoming illness.

If an employee or contractor has tested positive for the virus, the regulations require the company to notify all workers and any other person who was present at the place of employment within the previous 14 days from the date of positive test.

Companies need to make the notification within 24 hours of finding out an employee tested positive, while keeping confidential the worker’s identity.

Businesses also need to notify subcontractors and building owners of the positive test result.

In addition, employers must develop and implement policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19 and no alternative diagnosis has been made. These workers cannot return to work until cleared. The employee can, of course, telework if it’s an option.

Employers should ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies, in addition to compliance with the federal Families First Coronavirus Response Act.

If subcontractors work at the organization, the employer must notify their employers about the policies and encourage them to develop non-punitive sick leave policies.

The regulations provide a specific process for employees who tested positive for the virus to return to work, and employers can choose a test-based or symptom-based strategy for returning to work.

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The new safety mandates have other requirements:

  • Social distancing is required in the workplace.
  • Face coverings are required for employees who have contact with the public.
  • Workers are required to have access to hand sanitizer and hand washing while the businesses should frequently clean high-contact surfaces.
  • Employers need to establish and implement policies and procedures designed to ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property.
  • Businesses should close or control access to common areas, breakrooms or lunchrooms.
  • When multiple employees are occupying a vehicle for work purposes and/or where physical distancing is not possible, the employer shall ensure compliance with face coverings applicable to its industry. (The regulations exempt those with religious or medical conditions from wearing face coverings.)

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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