SO YOU THINK YOU’RE LOW RISK? UNDERSTANDING THE OBLIGATIONS AS A “LOW RISK” EMPLOYER UNDER VIRGINIA’S NEW EMERGENCY COVID-19 WORKPLACE REGULATIONS

In the wake of the July 27, 2020 implementation of the Virginia Department of Labor’s Emergency Temporary Standard on worker protection from Covid-19 (the “ETS” or “the regulations”), businesses across the Commonwealth are trying to decipher the more than 45 pages of new regulations to understand what exactly is required of Virginia employers to comply with these new COVID safety regulations.

The ETS uniformly imposes obligations on all employers across the Commonwealth.  Additional requirements, however, are placed on employers who are assessed to be “medium” risk, “high” risk, or “very high” risk workplaces.  The starting point for all employers, therefore, is to undertake the self-assessment identified in the ETS and determine their own risk classification.  After determining their own workplace risk classifications, employers are also required to evaluate risk levels of specific job positions.  In other words, even if an employer is medium risk, certain jobs may be classified as high risk or as low risk.  Without exception, all job tasks must be classified as “very high”, “high”, “medium” or “low” in terms of risk under the ETS.

This alert addresses the conditions which must be met for an employer to qualify as “Low” risk, and, where met, the obligations for each such employers.

A. Defining a Low-Risk Hazard Workplace

The regulations define “low” exposure risk workplaces or job tasks as those not otherwise specifically classified in a higher risk bracket, and that do not require regular employee contact within six (6) feet of coworkers or outsiders who could be infected with COVID-19.

Employees or workplaces in this category have “minimal” occupational contact with other employees, vendors, or the general public, and often work in office building settings.   Under the regulations, an employer may not initially qualify as a “low” risk workplace but may attain “low” risk classification where it is able to achieve minimal occupational contact between its workers and others through modifications to the work environment (as detailed below).

Even if an employer initially appears to qualify as a “low” risk workplace, managers must carefully review the job duties performed by each category of worker in the workplace to determine if those positions are, in fact, “medium,” “high,” or “very high” risk positions.  Such risk is to be assessed both on an industry level and on behalf of the job duties of the individual worker.

Where any employer could theoretically qualify as either a medium or low risk work environment, there are specific modifications endorsed by the regulations that can lower exposure risk in the workplace and move the risk needle lower.

B. Steps An Employer May Take to Reduce Workplace Risk

The regulations identify specific workplace modifications that can lower the risk classification, including:

• Installation of floor to ceiling barriers constructed of impermeable material and not subject to unintentional displacement. Clear plastic walls behind which one employee is working (as is now common at convenience stores) are specifically mentioned as an example of this measure.
• Allowing employees to work remotely to reduce the number of people in the employment setting.
• Staggering work shifts in such a way that will allow employees to maintain distance from other employees, persons, and the general public.
• Delivering services remotely by phone, audio, video, mail, package delivery, curbside pickup or delivery, etc. so as to allow employees to maintain physical distancing from other employees, persons, or the general public.
• Instituting mandatory physical distancing of employees from other employees, other persons, and the general public. Importantly, the use of masks or face coverings for contact within six feet is not considered to, by itself, sufficient to achieve a low risk designation.

Assuming that the initial self-assessment conducted by the employer supports the conclusion that the employer is one with a “low” exposure risk hazard, or that a self-assessment conducted after implementing the measures identified in the regulations to achieve minimum contact qualify the workplace as “low” risk, what is legally required of a “low” risk Virginia employer under the ETS?

C. Mandatory Requirements for Low Risk Employers in Virginia.

1. 1. Require Employees to Adhere to Certain Safety Protocols and Educate and Provide Notice to Your Workforce and Others Impacted by Potential Exposure at Your Workplace. 

Employers must inform their employees of ways to self-monitor for recognized COVID-19 symptoms (such as fever, coughing, or unexplained fatigue), and develop and implement procedures for employees to report possible symptoms or exposure with the assurance that their report will be kept private.  Exhaustive lists of potential COVID-19 symptoms should be provided to all employees.

1. 2. Employers Must Establish a System to Receive The Results of Positive COVID 19 Tests.

The new regulations require that all employers provide a reporting procedure so that employees and others can confidentially report a positive COVID test result to the employer.  In turn, the employer must identify employees and other personnel (such as temps or contractors), present at the workplace within the previous 14 days from the date of the positive test in compliance with other laws (such as HIPAA).  The employer must notify employees who may have been exposed to an infected individual within 24 hours of discovery, while keeping that individual’s identity confidential.

Additionally, an employer must notify the Virginia Department of Health within 24 hours of the discovery of a positive case, as well as the Department of Labor and Industry (DOLI) within 24 hours of the discovery of three (3) or more employees present at the workplace within a 14-day period who tested positive for SARS-CoV-2 during that same 14-day time period.  The employer must also notify their building/workplace facility owner (landlord) so that they may sanitize the common areas of the building and inform other tenants within the building of the positive case.

1. 3. Employees Should Implement Social Distancing Requirements and Appropriate Signage.

All employers should ensure physical distancing measures throughout their place of business.  Shared surfaces should be regularly cleaned/disinfected, occupancy should be limited in common areas or bathrooms, and hand-washing measures should be implemented.  Visual tools such as signs should be available to inform employees or visitors of the policies and should be prominent, and all policies should be enforced.  Face coverings or masks should be worn by all employees in business common areas in accordance with Virginia’s executive order unless a medical condition prevents a specific employee from doing so.

1. 4. All Employers Must Adopt A Return to Work Covid Policy.

All employers must implement recognized testing or symptom-based policies regarding the return to work for symptomatic employees infected (or suspected to have been infected) upon the cessation of symptoms or multiple successive negative tests, as well as for asymptomatic employees.  Under the testing based approach, an employee cannot return work until he or she has received 2 consecutive negative tests taken more than 24 hours apart.  Under the symptoms based approach, an employee may not return to work until ten (10) days after the first onset of symptoms or diagnosis and at least three (3) days without any symptoms or fever.

1. 5. All Employers Must Disinfect the Workplace and Encourage Proper Hygiene. 

Entrances to all common areas or restrooms must have posted notice of requirements for hand washing and sanitizing and disinfecting of shared surfaces.  Individual employees need to be on notice that it is their responsibility to clean and disinfect the immediate area in which they were located prior to leaving.  Alternatively, the employer may provide cleaning services to clean and disinfect any common area at regular intervals throughout the day.

Hand washing facilities should be available for employees at all times, and hand sanitizer should be freely available throughout the office for all employees to use regularly (including at individual workstations).  Employees that have interactions with other individuals (customers, the general public, contractors, etc.) must be provided with cleaning supplies to disinfect surfaces used during a given interaction.

“Disinfecting” is defined as using chemicals that have been approved for use against SARS-CoV-2 (such as EPA-registered disinfectants) to kill germs on common surfaces.  “Cleaning” is defined as the removal of dirt and impurities, including germs, from surfaces.  It is recognized that neither disinfecting or cleaning are foolproof strategies for removing the virus from a surface, but both practices are required as they significantly reduce the risk of spreading infection.

If an area in the workplace is known to have been occupied by an employee or other person that has been infected with COVID-19 (or suspected to have been), it must be cleaned and disinfected before other employees use the area.  Where possible, a 24-hour period between the infected-person’s presence in a given area of the workplace and cleaning that area should be observed.  Further, only disinfecting chemicals or other products identified by the EPA should be used to disinfect a workplace.

D. What If You Are A “Medium,” “High” or “Very High” Risk Employer?

In forthcoming alerts, we will explain the obligations of medium and high risk employers under the regulations. For additional assistance or questions on how to comply with these new regulations (or any other COVID-19 related matter), please contact O’Hagan Meyer Virginia Labor & Employment team members Charlie Meyer at (804) 403-7101 or Joan McKenna at (804) 403-7107.

Authored By: Joan C. McKenna, Charles G. Meyer, III, and Ian McDowell, University of Richmond Law School