On July 15, Virginia became the first state in the nation to enact an Emergency Temporary Standard to address the COVID-19 pandemic. The ETS will go into effect at the end of July.

All employers in Virginia will have to comply with a variety of requirements, and employers with higher exposure risk scenarios will be faced with additional mandates. To help prepare employers for compliance, ABC general counsel Littler Mendelson P.C. published an article detailing certain mandatory requirements in the ETS that all employers in Virginia are required to follow, including:

• Conducting an exposure assessment of all workplaces and classifying each job task according to the exposure hazards;
• Encouraging and informing employees of the methods 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 the importance of employees staying home if they are suspected or known to have COVID-19 with subcontractors and companies providing contract or temporary employees;
• 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 providing 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; and
• Complying with specific sanitation and disinfection requirements articulated in the ETS.

The Littler article also states that Virginia employers should consult with their attorneys to determine how the ETS applies to them, what requirements they must meet and how to implement these requirements. Read the full article here.

In the construction sector, even without a COVID-19 outbreak, safety and health is always our No. 1 priority. As representatives of residential, nonresidential and industrial construction contractors across the country, we remain committed to collaborating with state and local health officials, as well as across market sectors, to diligently identify and implement new health and safety protocols on our jobsites to protect construction employees amid the COVID-19 outbreak.

On June 22, ABC, as a member of the Construction Industry Safety Coalition, submitted comments to the Virginia Department of Labor and Industry’s on the Emergency Temporary Standard/Emergency Regulation, Infectious Disease Prevention. In the comments, CISC stated it had concerns with the standard as it includes a wide range of mandates that would be broadly applicable to all industries.  Specifically, the CISC comments stated:

“The CISC does not believe that evidence supports application of such a wide range of requirements to the construction industry, which has already taken strides to address COVID-19. The standard also does not account for the unique nature of construction work and, as a result, we believe will not be effective in construction in minimizing the risk of COVID-19. The recommended standard also does not take into account the changing public health recommendations of the Centers for Disease Control and Prevention and other public health agencies, essentially setting requirements ‘in stone’ and not allowing for flexibility of compliance. Finally, the extensive requirements go well beyond the mandate for the rule established by Gov. Ralph Northam and would include provisions that are not at all necessary to address the virus. The CISC requests that the DOLI rethink its approach to the recommended standard to ensure that employers and employees are protected and that the rule can be effectively implemented.”

Read CISC’s full comments here.

Additionally, on May 18, 2020, the AFL-CIO petitioned the U.S. Court of Appeals for the D.C. Circuit asking the court to order OSHA to issue an emergency temporary standard applicable to COVID-19. ABC filed an amicus brief opposing the petition and was gratified when the appeals court rejected the union’s petition on June 11, 2020. The AFL-CIO has petitioned for rehearing by the full appeals court, so the matter remains pending. Read ABC’s statement here.

ABC will continue to update members on Virginia’s ETS as well as several other states considering similar measures in Newsline. 

This article is intended for informational purposes only and does not constitute legal advice or opinion.