NOT EVERYONE IS “LOW RISK”: Understanding Your Obligations As A “Medium Risk” Employer Under Virginia’s New Emergency COVID-19 Workplace Regulations
Virginia’s first in the nation COVID-19 workplace regulations require businesses across the Commonwealth to assess their COVID risk both as a business and by job. On August 7, 2020, we addressed the duties imposed on “low risk” employers, such as professional service firms and businesses that operate in office settings. But what if your workplace is not exactly low risk? This week’s O’Hagan Meyer Alert addresses the ETS requirements for medium risk employers and their workforce.
A. Defining a Medium-Risk Hazard Workplace:
A Virginia employer or particular job will be considered a “medium” exposure risk if it requires more than minimal occupational contact inside of six feet with any employees, third-parties, or members of the general public who may be infected with SARS-CoV-2, even if those individuals are not known or suspected to be infected with the SARS-CoV-2 virus.
The list of “medium” risk workplaces specifically mentioned in the regulations is extensive and covers most common types of businesses and jobs that involve work in settings not typically open to the public, such as food processing; agricultural work; manufacturing; and construction; and commercial transportation; educational settings, including schools and colleges.
Notably, medium risk employers may include some healthcare settings (including hospitals, EMT services/emergency rooms, doctor’s offices, and nursing homes), as long as the employee is not knowingly exposed to individuals known or suspected to have been infected with COVID-19.
B. Mandatory Requirements for Medium Risk Employers:
- Verification of the Hazard Assessment and Personal Protective Equipment
Medium-risk employers not otherwise covered by the VOSH Standards for General Industry must assess their workplace to determine if COVID-19 hazards or job tasks are present and necessitate the use of PPE.
The employer must verify that the required COVID-19 workplace hazard assessment has been performed by completing a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; and the date of the assessment. Employers must keep a copy of this document as a self-certification of their hazard assessment.
The employer also must provide for employee involvement in this process and, if applicable, may allow an employee representative to participate in the assessment. If a hazard that necessitates the use of PPE is found, the employer must (a) require that affected employees use the appropriate PPE to protect them from COVID-19; and (b) select PPE that properly fits each employee.
2. Medium-Risk Employers Must Develop a Written Response Plan.
Workplaces that are classified as “medium” risk locations, and that have eleven or more employees, also must develop and implement a Written Infectious Disease Preparedness and Response Plan (the “Plan”) and implement training to comply with that Plan. The Plan only applies to employees classified as performing “medium” risk job tasks. The requirements are as follows:
(A) Identify the Responsible Person– The employer must designate and identify a person responsible for implementing the plan who has knowledge regarding infection control principles and practices as they apply to the work place or job tasks.
(B) Involve Your Employees. The Plan must provide for the involvement of employees in its development and implementation.
(C) Consider and Address all COVID Risks. The Plan must specifically consider and address the risk of COVID-19 exposure in the worksite or at external worksites, and in the performance of relevant job duties, identifying
i. The nature or source of the potential risk, including where and how employees might be exposed to the virus, including:
- The source of exposure (co-workers, the public, or others);
- Known or suspected individuals with COVID-19 or those at high risk of having contracted it (such as individuals who have engaged in international travel or have had sustained presence in a healthcare setting); and
- Employees who work in more than one job, and where a second job could raise higher potential exposure risk,
ii. To the extent permitted by law, the Plan should consider protections for employees with particular and known vulnerability to COVID-19, including those who are immunocompromised, those with chronic kidney disease, COPD, obesity (BMI of 40 or higher) serious heart conditions, sickle cell disease, type 2 diabetes, and those who may be at increased of severe illness for Covid-19, including asthma, hypertension, cystic fibrosis, high blood pressure, HIV, pregnancy and other conditions. Managers must consider engineering, administrative and work practice controls, and PPE necessary to address those risks.
(D) Consider Contingency Plan for Situations that May Arise Due to Outbreaks. The Plan must consider certain contingency planning for increased absenteeism or outbreaks; including:
- The need for physical distancing, staggered work shifts, downsizing operations, delivering services remotely or other exposure-reducing workplace control measures;
- Options for conducting essential operations with a reduced workforce, including cross-training employees; and
- Management of interrupted supply chains or delayed deliveries.
(E) Identify and Implement Basic Infection Prevention Measures, including making soap and including making soap and water or hand sanitizers easily accessible, promoting frequent hand washing, maintaining regular housekeeping practices including routine cleaning and disinfecting of surfaces and equipment, and establishing policies and procedures for managing and educating visitors to your office.
(F) Provide for Prompt Identification and Isolation of Persons Infected or Suspected to be infected with COVID-19, including procedures to report when they have symptoms.
(G) Address Infectious Disease Preparedness with Outside Businesses. Ensure that outsiders who visit the office comply the regulations and the Infectious Disease Response Plan.
(H) If the Employer Opts to comply with any mandatory or non-mandatory CDC guidelines in lieu of the new OSHA regulations, identify the specific guidelines.
(I) Ensure compliance with all executive orders.
3. Engineering Controls Within the Workplace.
The employer must ensure that its business air-handling systems address COVID-19 related hazards by being maintained in accordance with the manufacturer’s instructions and complying with relevant ANSI standards.
4. Administrative and Work Practice Controls
To the extent possible, medium risk employers also must:
- Prescreen or survey employees to verify that no employee has any signs or symptoms of COVID-19 before the start of each shift.
- Provide flexible work hour or worksite policies (such as teleworking or staggered shifts) where possible, as well as increased distancing between employees and with others (such as customers) to six feet or greater.
- Install physical barriers (such as clear plastic sneeze guards) where they will aid in mitigating the spread of COVID-19.
- Deliver services remotely where possible, and deliver products through curbside pick-up or delivery. Employers must provide face coverings to employees who, because of their specific job tasks, cannot feasibly practice physical distancing from other employees or individuals (such as customers).
- Provide facemasks to all employees with customer-facing jobs and require that they be worn.
- Establish a reporting mechanism for individuals who have been or are suspected to have been infected to report their status to their employer. This includes a reporting procedure for the employer to warn any employee who may have been infected to quarantine while maintaining the confidentially of the infected person’s identity.
Finally, medium risk employers must provide comprehensive training for all employees. Adequate training will enable each employee to recognize the hazards, signs and symptoms, characteristics and methods of transmission of COVID-19. It also should include training each employee in risk-minimizing procedures and cover the requirements of the Emergency Temporary Standard and any other guidance the employer is complying with (such as from the CDC or another state). Further, training must give employees notice of the various risk factors (such as underlying health conditions) posed by severe COVID-19, and make employees aware of the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the disease. Training must inform employees of safe and healthy work practices, including physical distancing, disinfection procedures, proper ventilation, and safe ways to greet and interact with one another.
By following these highlighted Response Plan and Training requirements, Virginia’s “medium risk” employers can help promote improved safety in their workplace while getting back to work for the benefit of their customers and employees.
For specific assistance in complying 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.