On July 15, 2020, Virginia became the first state in the nation to implement an emergency temporary standard (“ETS”) to address the COVID-19 pandemic. The ETS covers every employer in the Commonwealth and includes mandatory requirements for all employers (with additional requirements for workplaces with certain exposure risk levels), training and leave requirements, and an anti-discrimination provision.

The ETS will take effect the week of July 27, 2020 on a date to be determined. Once in effect, employers will have 30 days to comply with the training requirements on the ETS and 60 days to comply with the training requirements on the employer’s infectious disease preparedness and response plan (“Plan”).

The ETS requires each employer to assess the “exposure risk level” of disease-related hazards present for job tasks undertaken by employees at each place of employment.  The exposure risk levels articulated in the ETS are “very high,” “high,” “medium,” and “lower.”  The ETS defines factors that employers should consider when assessing their exposure risk levels but also defines these risk levels.  

The ETS indicates that, to the extent an employer “actually complies with requirements contained in CDC publications, whether mandatory or non-mandatory to mitigate SARS-CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this [ETS], the employer’s actions shall be considered in compliance with this [ETS].”  The ETS does not, however, identify what constitutes a “CDC publication” nor does it explain how the state will decide whether an employer is complying with any such CDC publications.

Despite the exposure risk levels that a workplace falls under, the ETS contains certain mandatory requirements for all employers in Virginia. These include:

• Conducting an exposure assessment of all workplaces and classifying each job task according to the exposure hazards.
• Informing employees of the methods of contracting COVID-19, and encouraging employees to self-monitor for, signs and symptoms of COVID-19.
• Developing and implementing policies and procedures for employees to report when they are experiencing symptoms consistent with COVID-19 when no alternative diagnosis has been made.
• Prohibiting employees or other persons known or suspected to be infected with the virus from reporting to or remaining at the work site until cleared to return to work.
• To the extent feasible and permitted by law, ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
• Discussing with subcontractors and companies providing contract or temporary employees about the importance of employees staying home if they are suspected or known to have COVID-19.
• To the extent permitted by law, establishing a system to receive notice of any positive SARS-CoV-2 tests by employees, subcontractors, contract employees, and temporary employees who were present at the place of employment within the 14 days preceding the positive test and provide certain notifications to their own employees, the employees of others, the building/facility owner, the Virginia Department of Health, and the Virginia Department of Labor and Industry, depending on specific circumstances articulated in the ETS.
• Ensuring employees have access to their own virus and disease-related exposure and medical records.
• Developing and implementing policies and procedures for employees to return to work.
• Ensuring employees observe physical distancing on the job and during paid breaks.
• Closing or controlling access to common areas.
• Ensuring compliance with respiratory protection when multiple employees are occupying a vehicle for work purposes.
• Ensuring compliance with respiratory protection when the nature of an employee’s work or work area does not allow physical distancing.
• Complying with specific sanitation and disinfection requirements articulated in the ETS.

The ETS also requires additional engineering and administrative controls to be implemented depending on the job task or hazard’s exposure risk level.

As for training requirements, Virginia employers must train their employees on the ETS and may also be required to develop and implement a written Plan with very specific issues to be addressed in such Plan and to train their employees on this Plan as well.

Finally, the ETS contains an anti-discrimination provision that prohibits employers from discharging or discriminating against employees exercising their rights under the ETS, voluntarily wearing their own personal protective equipment, and raising a “reasonable concern about infection control related to COVID-19.”

Virginia employers should consult with their counsel to determine how the ETS applies to them, what requirements they must meet, and how to implement these requirements. To assist Virginia employers in complying with the ETS, Littler will be hosting a complimentary webinar on Tuesday, July 21, 2020 at 1:00 PM EST to review the ETS in greater detail.