September 21st, 2020

Reopening Business in the Time of COVID-19: Virginia Passes New Mandated Safety Standards for Business

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Author: Darla J. McClure

Restaurant after Covid

As businesses start reopening, there remains substantial confusion and concern about maintaining the safety of the business’ workforce and the public. To help address these concerns, the Commonwealth of Virginia recently issued first-in-the-nation emergency guidance for Virginia businesses that set forth specific health and safety standards that Virginia businesses must comply with.

The stated purpose of these standards is to establish requirements for employers to control, prevent, and mitigate the spread of the coronavirus causing COVID-19. All employers are required under the Standards to develop:

  1. Exposure risk assessments for employees based on tasks (more on this below);
  2. Notice and reporting procedures in the event an employee tests positive for COVID-19 that comply with applicable state and federal public health laws;
  3. Returning to work policies after an employee has been exposed to, or tests positively for, COVID-19;
  4. Policies requiring social distancing and/or personal protective equipment;
  5. Closing or substantially limiting access to common areas and other areas in the business where employees tend to congregate or cannot social distance; and
  6. Sanitation and disinfecting procedures in compliance with applicable standards.

As mentioned above, the Standards require each employer to assess the exposure risk to its employees for purposes of determining whether additional requirements must be complied with. The increased requirements vary based on the level of potential exposure to an employee in performing his/her work duties and range from “very-high” to “lower” risk. Factors that an employer must use to categorize each employee’s risk threshold include:

  1. The job task to be completed;
  2. The work environment (indoor vs. outdoor);
  3. The known or suspected presence of a person known or suspected to have COVID-19;
  4. The number of employees and/or other persons in relation to the size of the work area;
  5. The duration and frequency of employee exposure without the ability to social distance; and
  6. the frequency in which employees are in contact with potentially contaminated surfaces or objects.

For tasks that are determined to be “very high,” “high” or “medium” exposure risks, employers have a number of additional requirements that must be complied with to minimize the exposure and spread of the coronavirus between employees as well as the public. Some of these requirements include updating facilities and air-handling systems to minimize viral transmission, installing physical barriers, providing PPE — including masks and hand sanitizer — to employees, and reducing the number of employees in a facility by staggering shift or increasing use of telework services.

Additionally, employers in the “very high” or “high” risk categories, as well as employers in the “medium” risk category who have 11 or more employees, must also develop and implement an Infectious Disease Preparedness and Response Plan. This plan must include a designated person to administer the Plan who is familiar with infection and control principles and practices. The Plans should consider and address the risks related to COVID-19 in the workplace and provide an action plan for minimizing these risks. The Plan should also address contingency plans in the event of an outbreak, including plans related to absenteeism, physical distancing, staggering shifts, teleworking, cross-training employees, and cleaning procedures. Employers are also required to train employees to recognize the hazards of COVID-19 and to recognize the virus’ signs and symptoms.

Finally, the Standards state that employers are prohibited from discriminating against or firing an employee due to the employee exercising his/her rights under the safety and health provisions of Virginia law. This prohibition includes discriminating or terminating an employee for wearing his/her own PPE or raising a concern about infection control in the workplace.

For assistance in further understanding and implementing appropriate procedures, please do not hesitate to contact us.

You can find more on issues affecting businesses and individuals in our COVID-19 Resource Center.