Coronavirus (COVID-19) ETS FAQs

The ETS applies to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the VOSH program as described in §§ 16VAC25-60-20 and 16VAC25-60-30, including state and local government employers and employees.

NOTE: Federal OSHA retains jurisdiction over private sector maritime activities in Virginia. VOSH has jurisdiction of state and local government maritime related activities only.

No. Section 10.D states that the ETS is designed to supplement and enhance existing VOSH laws, rules, regulations, and standards applicable directly or indirectly to SARS-CoV-2 virus or COVID-19 disease-related hazards such as, but not limited to:

• personal protective equipment,
• respiratory protective equipment,
• sanitation,
• access to employee exposure and medical records,
• occupational exposure to hazardous chemicals in laboratories,
• hazard communication,
• Va. Code §40.1-51.1.A

Should the ETS conflict with an existing VOSH rule, regulation, or standard, the more stringent requirement from an occupational safety and health hazard prevention standpoint shall apply.

Yes.  Section 10.E.1 specifically recognizes that “various hazards or job tasks at the same place of employment can be designated as “very high”, “high, “medium”, or “lower” exposure risk for purposes of application of the requirements of this standard”.

The ETS takes a layered approach to providing employee protection against SARS-CoV2 and COVID-19 hazards and job tasks depending on exposure risk level:

• There are minimum requirements that apply to all employers (see §40, Mandatory requirements for employers in all exposure risk levels),
• Enhanced requirements for “medium” exposure risks (see §60 Requirements for hazards or job tasks classified at “medium” exposure risk); and
• Enhanced requirements for “very high” or “high” exposure risks (see §50 Requirements for hazards or job tasks classified at “very high” or “high” exposure risk).

Section 10.G.1 provides that:

To the extent that an employer actually complies with a recommendation
contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer’s actions shall be considered in compliance with this standard. (Emphasis added).

As provided in the ETS, CDC provisions that an employer complies with must provide equivalent or greater protection to employees in order for the employer’s actions to be considered in compliance with the ETS

Section 10.G.2 provides that:

Public and private institutions of higher education that have received certification from the State Council of Higher Education of Virginia that the institution’s re-opening plans are in compliance with guidance documents, whether mandatory or non-mandatory, developed by the Governor’s Office in conjunction with the Virginia Department of Health, shall be considered in compliance with this standard, provided the institution operates in compliance with their certified reopening plans and the certified reopening plans provide equivalent or greater levels of employee protection than this standard. (Emphasis added).

Section 10.G.2 provides that:

Public school divisions and private schools that submit their plans to the Virginia Department of Education to move to Phase II and Phase III that are aligned with CDC guidance for reopening of schools that provide equivalent or greater levels of employee protection than a provision of this standard and who operate in compliance with the public school division’s or private school’s submitted plans shall be considered in compliance with this standard. (Emphasis added).

No. Section 10.F provides:

This standard shall not conflict with requirements and guidelines applicable to businesses set out in any applicable Virginia executive order or order of public health emergency.

However, please note that §10.F does not apply to existing VOSH standards and regulations that were in place and applicable to covered employers and employees prior to the COVID-19 pandemic. VOSH is required by the OSH Act of 1970 and OSHA regulations to be “at least as effective as” federal OSHA. VOSH generally follows OSHA interpretations of federal identical standards and regulations.

No. Section 10.H specifically provides that “Nothing in the standard shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.”

No, provided that they “serve without pay.”  Virginia Occupational Safety and Health (VOSH) laws, standards, and regulations do not apply to volunteer fire fighters or members of volunteer rescue squads who “serve without pay.”  Section 16 VAC 25-60-10[1] defines a “public employee” as:

“Public employee” means any employee of a public employer. Volunteer members of     volunteer fire departments, pursuant to §27-42[2] of the Code of Virginia, members of     volunteer rescue squads who serve without pay, and other volunteers pursuant to the            Virginia State Government Volunteers Act [§2.2-3600[3] et. seq.] are not public employees….

In determining whether volunteer fire fighters or volunteer rescue squad members are covered by VOSH, the question of whether they “serve without pay” is looked at on a case by case basis.  Volunteers are not paid a salary but do receive some benefits from their organization.  If the benefits the volunteer receives are authorized by the Code of Virginia they are not considered as pay and those benefits would not bring the volunteer under VOSH coverage.  Examples of benefits that are authorized by the Code of Virginia include, but are not limited to, meals, lodging, liability insurance coverage, etc.  Receipt of such statutorily defined benefits would not be considered pay.

However, for instances where “benefits” go beyond or are different from those listed in the Code of Virginia, VOSH will make an independent determination on whether the additional benefits amount to “pay.”  For example, if each volunteer received trip money per call of $50 and the most it could cost to get from one end of the service area to the other is $20 then the additional amount might be considered pay.

Please call Rob Field, DOLI Hearing and Legal Services Officer, at (804) 786-4777 if you have additional questions.

In order for an employer to take advantage of the language in 16VAC25-220-10.G to be “considered in compliance with” the ETS in the context of a VOSH inspection, the employer will have to inform VOSH what CDC guidelines they are complying with that they contend provide “equivalent or greater protection than provided by a provision of this standard.”  VOSH will then evaluate the employer’s submission and if it agrees that the guidelines do provide equivalent or greater protection, it will then have to verify employer compliance with the guidelines through the inspection process (e.g., conduct interviews, etc.).  VOSH will not be going through a separate process of identifying CDC guidelines it considers to provide equivalent or greater employee protection to individual provisions of the ETS.

16VAC25-220-10.G.1 provides in part:

“To the extent that an employer actually complies with a recommendation contained in CDC guidelines… and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer’s actions shall be considered in compliance with this standard….”

In order for an employer to take advantage of the language in 16VAC25-220-10.G.1 to be “considered in compliance with” the ETS (for instance, in the context of a VOSH inspection), the employer will have to inform VOSH what CDC guidelines they are complying with that they contend provide “equivalent or greater protection than provided by a provision of this standard.”

First, when you use the term “risk assessment” we are assuming you are referring to the requirement in 16VAC25-220-40.B.1 that:

“1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Employers shall classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of this standard for very high, high, medium, or lower risk levels of exposure. Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”

Second, with regard to your specific question about performing a risk assessment for each hospital, you would need to provide information on which CDC guidelines you are referring to and indicate whether those guidelines provided for any sort of risk assessment that could be considered to provide equivalent or greater protection to that provided by 16VAC25-40.B.1.  The CDC guidelines you point to do not have to be identical in nature to any particular provision in the ETS, but they would have to achieve the same intended result in at least an equivalent fashion.

Third, in the context of your statement that you are dealing with multiple hospitals, if you have consistent types of job tasks across those hospitals, we note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”  An employer may prepare a risk assessment that provides corporate wide classification of job tasks by risk category (very high, high, medium, and lower) for its Virginia locations that could meet the requirements of the ETS.

However, please note that if an individual hospital had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific hospital.

The individual hospitals would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

Yes.  16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this standard also includes, but is not limited to, temporary employees and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.” (Emphasis added).

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the ETS are the same as for any other VOSH or OSHA standard.  See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

Yes.  See answer to §10 – FAQ 1, above.  Also, with regard to public and private schools, please note that 16VAC25-220-10.G.2 provides in part:

2. “….A public school division or private school that submits its plans to the Virginia Department of Education to move to Phase II and Phase III that are aligned with CDC guidance for reopening of schools that provide equivalent or greater levels of employee protection than a provision of this standard and who operate in compliance with the public school division’s or private school’s submitted plans shall be considered in compliance with this standard. An institution’s actual compliance with recommendations contained in CDC guidelines or the Virginia Department of Education guidance, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard.

As provided in the ETS, Phase II and Phase III plans that are aligned with CDC provisions that a public school division or private school complies with must provide equivalent or greater protection to employees than a provision in the ETS in order for the employer’s implementation actions to be considered in compliance with the ETS.

To determine appropriate protections for employees from the SARS-CoV-2 virus under the ETS, employers must first “assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Employers shall classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of this standard for very high, high, medium, or lower risk levels of exposure. Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.” 16VAC25-220-40.B.1. (Emphasis added).

Definitions for very high, high, medium, or lower risk levels of exposure can be found in 16VAC25-220-10.

NOTE:  Employees classified as lower risk “do not require contact inside six feet with persons known to be, or suspected of being, or who may be infected with SARS-CoV-2. Employees in this category have minimal occupational contact with other employees, other persons, or the general public, such as in an office building setting; or are able to achieve minimal occupational contact through the implementation of engineering, administrative and work practice controls….  16VAC25-220-10. (Emphasis added).

In addition, (for lower risk classifications) “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” 16VAC25-220-10. (Emphasis added).

You discussed in your letter that:

• The natural layout of our locations lends our work spaces to be more than six feet of social (physical) distancing.
• Our service bays are spaced farther apart than six feet, and because of this, our employees performing their required duties are not in contact with other employees or customers.
• These businesses are offering numerous options so their customers have minimal to no contact with the employees of the store.
• Concierge pickup and delivery services of the vehicle, after hour exterior key drop services, complimentary
• Uber rides home or to work, phone payments and more insure a safe experience for our member’s customers with little or no contact.
• In addition, our member store employees wear face coverings and gloves, and exterior surfaces are continuously cleaned and sanitized.
• The customer’s vehicle is sanitized before being returned.

If your member’s employees are able to maintain physical distancing of 6 feet from other persons (employees, customers, etc.) at all times, than it is appropriate for their job tasks to be classified as “lower risk.”

As noted above, the definition for “lower risk” also provides that “when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required”, and still allows the job tasks to remain classified as “lower risk.”

The main situation VOSH can envision that might cause some difficulties in risk classification, would be for those job tasks, if any, where employees are required to work inside six feet with each other for more than “brief” contact (e.g. encountering another person in a hallway that does not allow for physical distancing of 6 feet).  If such job tasks exist, then that would result in those job tasks being classified as “medium” risk, which would mean additional requirements in the ETS would apply.  This type of determination will have to be made on a case by case basis by your members based on the definitions in the ETS.

VOSH would also take this opportunity to note your members’ ongoing obligation to comply with other existing VOSH standards and regulations such as those for personal protective equipment, respiratory protection equipment, hazard communication, etc., which are not impacted by the ETS for lower risk classifications, but do protect against other workplace hazards (hearing loss, chemical hazards, welding hazards, etc.).

At its core the ETS is a risk management system to prevent or limit the spread in the workplace of the SARS-CoV-2 virus. It provides certain mandatory requirements for all employers and additional requirements commensurate with increased levels of risks associated with certain workplace hazards and job tasks. The ETS also provides employers with a level of flexibility to achieve compliance and incentivizes employers to establish mitigation strategies that will eliminate or substantially decrease employee exposure to the virus.

While the ETS provides specific additional requirements for very high, high and medium risk work environments centered around mitigation of hazards and redesign of job tasks, it is also designed to incentivize employers to make changes that will allow job tasks to be reclassified to lower risk.  Any actions that your members can take in redesigning work that will enable them to reclassify a medium risk job task to lower risk will both reduce the likelihood of employees spreading the virus as well as the regulatory burden on your member’s company.

VOSH encourages you to suggest your members consider working with our Consultation Program for small employers (up to 250 employees at one site or 500 nationwide) which is available to provide free, confidential consultation and training services.  The program also has 3 consultants that are available as demand allows to work with large employers.

https://doli.dev.sitevision.com/vosh-programs/consultation/

No.  Here is a link to OSHA’s website that explains VOSH jurisdiction:

https://www.osha.gov/stateplans/va

VOSH does not generally cover private contractors working at federal installations (with the exception of those engaged in asbestos removal):

“The Virginia State Plan applies to private sector workplaces in the state with the exception of: ….

3. Employment at worksites located within federal military facilities as well as on other federal enclaves where civil jurisdiction has been ceded by the state to the federal government.” (Emphasis added).

With regard to temporary employees working for the federal government, any exposures to COVID-19 they may experience at the federal installation would also fall under federal OSHA jurisdiction.

The situation you raise falls under the Americans With Disabilities Act (ADA) which is enforced by the Equal Employment Opportunity Commission (EEOC).  We are not experts on the ADA, but here is a link to their webpage with guidance on the ADA and COVID-19 issues.  You need to research the core issue of whether the “high risk” category that the employee falls into is a “medical condition” that meets the definition of a “disability” under the ADA or not.   Section D contains FAQs on “reasonable accommodations” that are provided to employees with a disability.  You will also see the term “undue hardship” referenced, which you should research to see if it applies to your company’s situation.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

16VAC25-220-10.G.2 provides that:

Public and private institutions of higher education that have received certification from the State Council of Higher Education of Virginia that the institution’s re-opening plans are in compliance with guidance documents, whether mandatory or non-mandatory, developed by the Governor’s Office in conjunction with the Virginia Department of Health, shall be considered in compliance with this standard, provided the institution operates in compliance with their certified reopening plans and the certified reopening plans provide equivalent or greater levels of employee protection than this standard. (Emphasis added).

In order for an employer to take advantage of the language in 16VAC25-220-10.G.2 to be “considered in compliance with” the ETS in the context of a VOSH inspection, the employer will have to provide VOSH with its certified re-opening plan and indicate which elements they are complying with that they contend provide “equivalent or greater protection than provided by the (ETS) standard.”

VOSH will then evaluate the employer’s submission and if it agrees that the plan element(s) do provide equivalent or greater protection, it will then have to verify employer compliance with the plan element(s) through the inspection process (e.g., conduct interviews, etc.).

To assure the effective use of limited inspection resources, VOSH will not be going through a separate process of conducting pre-inspection review and approval of plans that an employer considers to provide equivalent or greater employee protection to individual provisions of the ETS.  That responsibility lies with the employer.

VOSH recommends that employers do their due diligence in comparing their plan to the ETS, which you appear to have done, and make any modifications you deem necessary to take advantage of 16VAC25-220-10.G.2.  As further noted in that section:

An institution’s actual compliance with recommendations contained in…

…the Virginia Department of Education guidance, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this  standard shall be considered evidence of good faith in any enforcement proceeding related to this standard. (Emphasis added).

You also asked whether the university has to comply with provisions in the ETS for conducting exposure risk assessments under 16VAC25-220-40.B.1 or comply with the 24 hour notification requirements for positive COVID-19 employee cases under 16VAC25-220-40.B.8.d and -B.8.e.  With regard to comparing your institution’s plan to the ETS to determine whether it provides equivalent or greater levels of employee protection, you need to identify whether your plan provides for any sort of risk assessment or employee notifications that could be considered to provide equivalent or greater protection to that provided by 16VAC25-220-40.B.1 and -40.B.8.  The institution’s plan does not have to be identical in nature to any particular provision in the ETS, but it would have to achieve the same intended result as the ETS in at least an equivalent fashion.

For further information on employee assessments and 24 hour employee notifications, please see the Departments FAQ document on the ETS at:

https://doli.dev.sitevision.com/conronavirus-covid-19-faqs/

Generally speaking, VOSH does not have jurisdiction over mines and quarries, which are regulated by the Virginia Department of Mines, Minerals and Energy (DMME).  At the federal level, the Mine Safety and Health Administration (MSHA) and OSHA entered into an Interagency Agreement in 1980, which VOSH follows when determining jurisdiction issues involving mines and quarries – there are lines of demarcation for when MSHA/DMME jurisdiction ends and OSHA/VOSH jurisdiction begins.  The Agreement can be found at this link:

https://www.osha.gov/enforcement/directives/cpl-02-00-042-0

The ETS will take effect on the dates of its publication, July 27, 2020.

Requirements for employee training in §80, with the exception of §80.B.8 regarding training required on infectious disease preparedness and response plans, will take effect on August 26, 2020.

The requirements for §70, Infectious disease preparedness and response plan, will take effect on September 25, 2020.

The training requirements under §80.B.8 regarding training required on infectious disease preparedness and response plans will take effect on September 25, 2020.

The ETS will remain in effect for six (6) months. Section 20 provides:

This emergency temporary standard shall expire within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or when repealed by the Virginia Safety and Health Codes Board.

NOTE: During the six (6) month period the ETS is in effect, the Safety and Health Codes Board will be considering the adoption of a permanent standard to replace the ETS. A sixty (60) day written public comment period and one or more public hearings will be held on the proposed permanent standard.

Definitions are provided for the following terms in §30:

Administrative Control, Airborne infection isolation room (AIIR), Asymptomatic, Building/facility owner, Cleaning, Community transmission, COVID-19, Disinfecting, Duration and frequency of employee exposure, Economic feasibility, Elimination, Employee, Engineering control, Exposure Risk Level (“Very high,” “High,” “Medium,” and “Lower”), Face covering, Face shield, Feasible, Filtering facepiece respirator, Hand sanitizer, Known to be infected with the SARS-CoV-2 virus, May be infected with SARS-CoV-2 virus, Occupational exposure, Personal protective equipment, Physical distancing, Respirator, Respirator user, SARS-CoV-2, Signs, Surgical/Medical procedure mask, Suspected to be infected with SARS-CoV-2 virus, Symptomatic, Technical feasibility, and Work practice control.

Yes. The ETS provides that:
Nothing in this standard shall be construed to prohibit an employer from requiring a known or suspected to have COVID-19 employee to be tested in accordance with §40.B.1.b.
The Equal Employment Opportunity Commission (EEOC) has decided that employers can require employees to be tested for COVID-19:
Answer to Question A.6, “….employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

No. Sections 40.B.1.b.ii and 40.B.2.b.ii provide:
For purposes of this section, COVID-19 testing is considered a “medical examination” under §40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations.

Yes. Section 40.A.7 provides that:
….the building/facility owner will notify all employer tenants in the building that one or more cases have been discovered and the floor or work area where the case was located. The identity of the individual will be kept confidential in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable federal and Virginia laws and regulations.

• personal protective equipment
• respiratory protective equipment
• sanitation
• access to employee exposure and medical records
• occupational exposure to hazardous chemicals in laboratories
• hazard communication
• recordkeeping

No.  See Virginia Executive Order 63[1] dated May 26, 2020, “Requirement to Wear Face Covering While Inside Buildings” for information about face covering requirements in Virginia.  While the ETS does not mandate face coverings for the general public, 16VAC25-220-50.C.9 provides as follows for very high and high risk workplaces:

16VAC25-220-50.C.9. Provide face coverings to suspected to be infected with SARS-CoV-2 virus non-employees to contain respiratory secretions until the non-employees are able to leave the site (i.e., for medical evaluation and care or to return home).

The above requirement is also contained in 16VAC25-220-60.C.1.b for medium risk workplaces.

Yes.  16VAC25-220-40.B.8 provides:

1. To the extent permitted by law, including HIPAA, employers shall establish a system to receive reports of positive SARS-CoV-2 tests by employees, subcontractors, contract employees, and temporary employees (excluding patients hospitalized on the basis of being known or suspected to be infected with SARS-CoV-2 virus) present at the place of employment within the previous 14 days from the date of positive test, and the employer shall notify:
2. The employer’s own employees who may have been exposed, within 24 hours of discovery of the employees possible exposure, while keeping confidential the identity of the known to be infected with SARS-CoV-2 virus person in accordance with the requirements of the Americans with Disabilities Act (ADA) and other applicable federal and Virginia laws and regulations; and
3. In the same manner as subdivision 8 a of this subsection, other employers whose employees were present at the work site during the same time period; and in the same manner as subdivision 8 a of this subsection, the building or facility owner….” (Emphasis added).

No.  The reporting provisions is 16VAC25-220-40.A.8 only apply to situations where an employee was “present at the place of employment within the previous 14 days from the date of positive test.”

In the context of 16VAC25-220-40.A.8.e, “place of employment” means that the 3 or more infected employees worked at the same work site within the previous 14 days from the date of positive test.

No.  First, it is important to note that the ETS and General Industry standard §1910.141, Sanitation, provide for an alternative method of compliance in the form of employee access to hand washing facilities:

• “Employees shall have easy, frequent access and permission to use soap and water,” 16VAC25-220-40.K.8;
• “Each lavatory shall be provided hot and cold running water, or tepid running water,” §1910.141(d)(2)(ii); and
• “Hand soap or similar cleansing agents shall be provided,” §1910.141(d)(2)(iii).

Second, both ETS sections referenced acknowledge that there may be considerations of “feasibility” regarding the supply and usage of alcohol-based hand sanitizer (“hand sanitizer where feasible”).

With regard to the fire hazard concern, 16VAC25-220-40.E.1.d specifically acknowledges that “Hand sanitizers required for use to protect against SARS-CoV-2 are flammable and use and storage in hot environments can result in a hazard.”  VOSH encourages employers to engage in management of change best practices to prevent the unintentional introduction of a new occupational hazard when a new chemical, material, product, etc., is introduced into an existing work environment.  VOSH considers the potential for a fire hazard due to the presence of alcohol-based hand sanitizers in a hot manufacturing environment to present an issue of infeasibility within the definition of that term in the ETS or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

With regard to the concern that the introduction of an alcohol-based hand sanitizer into a facility could pose a threat of product contamination, VOSH considers product contamination concerns to present an issue of infeasibility within the definition of that term in the ETS or occupational safety and health case law (impossibility or infeasibility of compliance is an affirmative defense to VOSH citations and penalties, although employers must attempt to provide alternative methods of protection to employees).

When you use the term “risk assessment” we assume you are referring to the requirement in 16VAC25-220-40.B.1 that:

“1. Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to the SARS-CoV-2 virus or COVID-19 disease. Employers shall classify each job task according to the hazards employees are potentially exposed to and ensure compliance with the applicable sections of this standard for very high, high, medium, or lower risk levels of exposure. Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”

In the context of your statement that you are dealing with multiple worksite locations, if you have consistent types of job tasks across those locations, please note that 16VAC25-40.B.1 provides that “Tasks that are similar in nature and expose employees to the same hazard may be grouped for classification purposes.”  An employer may prepare a risk assessment that provides corporate wide classification of job tasks by risk category (very high, high, medium, and lower) for its Virginia locations that could meet the requirements of the ETS.

However, please note that if an individual location had special job tasks needing classification that were not contained in the corporate assessment, those job tasks would have to be classified for that specific worksite location.

The individual worksite locations would also need to be made aware of the corporate assessments and ensure that they provide employee protections at their worksite according to the level of risk associated with the specific job tasks.

16VAC25-220-40.B.8.e is not retroactive in nature, so the “14-day time period” first starts on the effective date of the ETS, which was July 27, 2020.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with Emergency Temporary Standard (ETS) Sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies.  The portal went live on Monday, September 28, 2020.  Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

All federal OSHA identical standards and regulations enforced by VOSH in General Industry (29 CFR Part 1910) apply to general industry employers like the trucking industry, except where otherwise exempted by §4(b)(1) of the OSH Act of 1970.  Two such standards are the Personal Protective Equipment (PPE) (1910.132^[1]) and Respiratory Protection (1910.134^[2]) standards.  COVID-19 is a respiratory disease that spreads easily through airborne transmission between persons in contact with each other inside six feet, so the PPE and Respirator Standards are considered applicable.

While the ETS contains specific requirements for an employer to determine the level of exposure risk to the SARS-CoV-2 virus at its workplace (very high, high, medium, or lower risk), generally the determination in most workplace settings outside of healthcare and emergency response will result in either a medium or lower risk classification depending on whether employees are required to work inside six feet of other persons (employees, customers, etc.) or not.

Employers must first implement engineering, administrative, and work practice controls to eliminate or reduce the frequency of contact with others inside of six feet to the extent feasible.  Where it is not feasible to eliminate contact with others inside of six feet, medium risk employers must determine what level of personal protective equipment (PPE) must be provided and worn as the last line of protection for employees against the virus.  This is done through conducting a hazard assessment to determine personal protective equipment (PPE) requirements for employees.  16VAC25-220-60.D (medium risk).

For medium risk job tasks, the ETS requires “employers to provide and employees to wear face coverings who, because of job tasks cannot feasibly practice physical distancing from another employee or other person if the [PPE] hazard assessment has determined that personal protective equipment, such as respirators or surgical/medical procedure masks, was not required for the job task.” 16VAC25-220-60.C.1.k.

The ETS also requires for medium risk job tasks “employers to provide and employees in customer facing jobs to wear face coverings.” 16VAC25-220-60.C.1.l.

NOTE:  Normally, port-a-johns or privies are rented from a service company and the agreement specifies the number of cleanings and servicing. They are normally serviced and cleaned two or three times per week, depending on the use, time of year or need due to site conditions. The servicing and cleaning is performed by an employee of the rental/service company providing the “johnny”.

Yes.  16VAC25-220-40.K.5 applies to port-a-johns or privies.

16VAC25-220-40.J of the Emergency Temporary Standard (ETS) on Infectious Disease Prevention for the SARS-CoV-2 Virus That Causes COVID-19 provides that:

Requests to the Department for religious waivers from the required use of respirators, surgical/medical procedure masks, or face coverings will be handled in accordance with the requirements of applicable federal and state law, standards, regulations and the U.S. and Virginia Constitutions, after Department consultation with the Office of the Attorney General.

Requests for religious waivers can be sent to:

Division of Legal Support
Virginia Department of Labor and Industry
600 E. Main Street, Suite 207
Richmond, VA  23219

jay.withrow@doli.dev.sitevision.com

The request should:

• Identify which provision of the ETS you are requesting a waiver from.
• Explain the religious basis for the waiver.
• Identify, if any, what reasonable accommodation you are requesting that would provide an equivalent form of protection.

Here is a link to the ETS:

https://doli.dev.sitevision.com/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf

Background

The federal Occupational Safety and Health Act (OSHA) regulates conditions in workplaces which affect employee safety and health.  The federal government assigned OSHA enforcement responsibilities in Virginia to the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) Program.  To maintain federal OSHA approval, Virginia is required to maintain OSHA program standards (regulations) that are “at least as effective as” federal regulations.

While the ETS is a standard unique to Virginia, VOSH’s Respiratory Protection Standard, 1910.134, is identical to that of OSHA.

Federal OSHA Interpretations on Religious Waivers

The following federal OSHA interpretations have been issued with regard to religious waivers for respirator use under 1910.134:

https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=24408&p_table=INTERPRETATIONS

https://www.osha.gov/laws-regs/standardinterpretations/1998-12-02

https://www.osha.gov/laws-regs/standardinterpretations/1984-01-18

Title VII Considerations (Title VII of the Civil Rights Act prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy)

(From EEOC Technical Assistance Questions and Answers – Updated on June 17, 2020)

“G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee…needs  a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.”

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Either the employee wanting the waiver or the employer may submit the request for the waiver.  However, if the employer chooses to submit the request, it will have to consult with the employee wanting the waiver to provide certain information needed for the request (see §40 – FAQ 15 for how to submit a request and what information needs to be provided).

We are not aware of any prohibition against the employer requiring the employee to submit the request.

Please also note that there are both occupational safety and health related issues in regard to religious waivers and Title VII legal issues as well (see §40 – FAQ 15 for further information).

16VAC25-220-40.J of the Emergency Temporary Standard (ETS) on Infectious Disease Prevention for the SARS-CoV-2 Virus That Causes COVID-19 provides that:

Requests to the Department for religious waivers from the required use of respirators, surgical/medical procedure masks, or face coverings will be handled in accordance with the requirements of applicable federal and state law, standards, regulations and the U.S. and Virginia Constitutions, after Department consultation with the Office of the Attorney General.

Please note that “face masks”, which are referred to as “face coverings in the ETS, are not considered respirators under 1910.134 or personal protective equipment under 1910.132.

16VAC25-220-20, Definitions, provides a definition of face covering:

“Face covering” means an item normally made of cloth or various other materials with elastic bands or cloth ties to secure over the wearer’s nose and mouth in an effort to contain or reduce the spread of potentially infectious respiratory secretions at the source (i.e., the person’s nose and mouth). A face covering is not intended to protect the wearer, but it may reduce the spread of virus from the wearer to others. A face covering is not a surgical/medical procedure mask. A face covering is not subject to testing and approval by a state or government agency, so it is not considered a form of personal protective equipment or respiratory protection equipment under VOSH laws, rules, regulations, and standards. (Emphasis added).

There is no prohibition in the ETS against wearing a face covering over facial hair.

With regard to “sanitation” under 16VAC25-220-40.K.8 and 1910.141,^[1] truck drivers are considered to be part of a “mobile crew”.  16VAC25-220-40.K.8 provides:

8. Employees shall have easy, frequent access and permission to use soap and water, and hand sanitizer where feasible, for the duration of work. Employees assigned to a work station where job tasks require frequent interaction inside six feet with other persons shall be provided with hand sanitizer where feasible at the employees work station. Mobile crews shall be provided with hand sanitizer where feasible for the duration of work at a work site and shall have transportation immediately available to nearby toilet facilities and handwashing facilities that meet the requirements of VOSH laws, standards, and regulations dealing with sanitation. Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard. (Emphasis added).

Also, §1910.141(c)(1)(ii) provides:

The requirements of paragraph (c)(1)(i) (which contains the requirement for providing toilet facilities) of this section do not apply to mobile crews or to normally unattended work locations so long as employees working at these locations have transportation immediately available to nearby toilet facilities which meet the other requirements of this subparagraph. (Emphasis added).

In addition, §1910.141(d)(2)(i) provides:

Lavatories (lavatories are required to be provided with hot and cold running water, or tepid running water) shall be made available in all places of employment. The requirements of this subdivision do not apply to mobile crews or to normally unattended work locations if employees working at these locations have transportation readily available to nearby washing facilities which meet the other requirements of this paragraph. (Emphasis added).

With regard to the requirement to provide hand sanitizer, VOSH assumes that the employer can comply with this requirement “where feasible” as the ETS provides in 16VAC25-220-40.E.1.d and -40.K.8.  However, please note the potential hazard of locating hand sanitizer in vehicle cabs where a hot environment might develop (this is regarded as a “feasibility” issue that needs to be considered by the employer).  16VAC25-220-40.K.8 provides:

Hand sanitizers required for use to protect against SARS-CoV-2 are flammable, and use and storage in hot environments can result in a hazard.

With regard to the ETS requirements for common areas, breakrooms, or lunchrooms where drivers conduct loading and unloading duties (“host employers”), if they are closed to your employees, the ETS requirements are not implicated.

If the areas are open to your employees and the host employer has implemented precautions consistent with the requirements in 16VAC25-220-40.E dealing with “Access to common areas, breakrooms, or lunchrooms shall be closed or controlled,” then the driver’s employer can instruct employees that they can use the areas, provided the employees follow the host employer’s rules for use.

If the areas are open to your employees but the host employer has not complied with the requirements in 16VAC25-220-40.E, the driver’s employer can instruct employees to not use those areas.

16VAC25-220-40.C provides options for an employer to either implement a symptom-based strategy or time-based strategy for the return to work of employees known or suspected to be infected with the SARS-CoV-2 virus, 16VAC25-220.C.1, and procedures for known to be infected asymptomatic employees, 16VAC25-220-40.C.2.

As noted in the question, on July 22, 2020, the CDC changed its guidance with regard to symptoms-based strategies from exclusion for 10 days after symptom onset and resolution of fever for at least 3 days to exclusion for 10 days after symptom onset and resolution of fever for at least 24 hours (i.e., the change was from 72 hours to 24 hours).^[1]

For persons who never develop symptoms (i.e., asymptomatic), isolation and other precautions can be discontinued 10 days after the date of their first positive RT-PCR test for SARS-CoV-2 RNA.^[2]

16VAC25-220-10.G.1 provides in part that:

To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID- 19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer’s actions shall be considered in compliance with this standard….  (Emphasis added).

Employers who comply with the above-referenced change in CDC guidance issued July 22, 2020, will be considered to be providing protection equivalent to protection provided by complying with the requirements in the ETS.

However, nothing in the FAQ shall be construed to prohibit an employer from complying with the symptom-based or time-based strategies for return to work determinations in the ETS.

Floor to ceiling barriers are one way of accomplishing physical distancing, but not required where it is already feasible to accomplish in other ways.

Lower risk job tasks are defined in 16VAC25-220-10 as:

“those not otherwise classified as very high, high, or medium exposure risk do not require contact inside six feet with persons known to be, or suspected of being, or who may be infected with SARS-CoV-2. Employees in this category have minimal occupational contact with other employees, other persons, or the general public, such as in an office building setting; or are able to achieve minimal occupational contact through the implementation of engineering, administrative and work practice controls….”

Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required. (Emphasis added).

If a lower risk office employee’s job tasks do not involve working inside six feet of others, they are not required to wear a face covering under the ETS.  However, as noted in the above definition, if a lower risk employee has “brief” contact with others inside six feet, they are required to wear a face covering (e.g., passing another person in a hallway that does not allow physical distancing of six feet).

Yes. Employers only need notify DOLI about the positive COVID-19 tests of its own employees under 16VAC25-220-40.B.8.e.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with Emergency Temporary Standard (ETS) Sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies.  The portal went live on Monday, September 28, 2020.  Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

16VAC25-220-40.C.1.b.i and C.2.b.i both refer to what an employer can do to comply with the ETS if an “employee refuses to be tested” for purposes of returning to work.  Those sections do not state that an employee is allowed to refuse.

Both sections go on to state that “Nothing in this standard shall be construed to prohibit an employer from requiring a known or suspected to be infected with the SARS-CoV-2 virus employee to be tested in accordance with subdivision 1.b of this subsection.”

That means that employees potentially can be disciplined for refusing to be tested if the employer chooses to do so under its disciplinary policy.

The above situation has become less of an issue with the change in CDC recommendations focusing more on using symptoms/time based alternatives for return to work instead of the test based system (see §40 – FAQ 18).

Finally, it is important to note that alternative return to work strategies (e.g., the symptom-based strategy for employees who have experienced symptoms or the time-based strategy for employees who have not experienced symptoms) are available for employees who choose not to be tested. Employer compliance with symptom-based or time-based strategies will be considered in compliance with the ETS. Furthermore, CDC’s guidance on discontinuing isolation indicates a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances, as SARS-CoV-2 tests from infected persons may remain positive for an extended period of time after recovery. As such, it may be preferable to offer symptom-based or time-based strategies to employees who choose not to be tested instead of pursuing disciplinary action.

16VAC25-220-40.C.2.b.ii provides that:

40. For purposes of this section, COVID-19 testing is considered a “medical examination” under § 40.1-28 of the Code of Virginia. The employer shall not require the employee to pay for the cost of COVID-19 testing for return to work determinations.

Yes, if an employer’s health insurance covers the entire cost of COVID-19 testing, use of the insurance coverage would not be considered a violation of 16VAC25-220-40.C.2.b.ii.

In addition, please see DOLI §40 FAQ 18 above, which allows for additional return to work options in lieu of testing.

No. Employees were required to be notified.

The term “close contact” is not used in the ETS.  The term “close contact” is used by the CDC for determining when contact tracing should be conducted and is defined as “any individual within 6 feet of an infected person for at least 15 minutes.” [1]  16VAC25-220-10.H specifically provides that:

1. Nothing in the standard shall be construed to require employers to conduct contact tracing of the SARS-CoV-2 virus or COVID-19 disease.

16VAC25-220.40.B.8.a requires employers to notify their “own employees who may have been exposed, within 24 hours of discovery of the employees’ possible exposure….”

Just because an employer has a strict policy of physical distancing as the company alleges does not mean that all employees, customers or persons complied at all times.  The intent of the notification requirement is to provide employees information of a “possible” exposure so that employees can make decisions for themselves on the appropriate course of action to take.

In a situation such as a typical beauty salon where the “footprint” of the floor space would not be considered large, and all employees work in the same work space on the same floor, the employer must notify all employees that were ”present at the place of employment within the previous 14 days from the date of positive test.”

“Isolation” is the separation of people with COVID-19 from others. People in isolation need to stay home and separate themselves from others in the home as much as possible.  Requirements for returning to work from isolation is covered by the ETS in 16VAC25-220-40.C.  However, please note that in lieu of complying with 16VAC25-220-40.C, employers may comply with recently updated CDC guidelines (see §40 FAQ 18).

“Quarantine” is separation of people who were in “close contact” with a person with COVID-19 from others. People in quarantine should stay home as much as possible, limit their contact with other people, and monitor their health closely in case they become ill.

“Close contact” means you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.^[1]

Requirements for returning to work from “quarantine” is NOT covered by the ETS.  Instead, Virginia Department of Health (VDH) guidelines apply (see §40, FAQs 26, 27, 28, 29).

Close contacts of a known COVID-19 case who are not experiencing symptoms should be quarantined at home until 14 days have passed since last contact with the COVID-19 case or, if contact is ongoing (such as living together in a household), 14 days after the COVID-19 patient has been released from isolation, which may result in exclusion for up to 24 days.

NOTE:  If the employee is a household contact of a person with COVID-19 and the employee is able to have complete separation from the ill person (meaning no contact, no time together in the same room, no sharing of any spaces, such as the same bathroom or bedroom), the employee may follow the timeline for non-household contact.

However, it may be necessary for personnel filling essential critical infrastructure roles (except for education sector workers) who are asymptomatic contacts to remain in the workplace in order

to provide essential services, if the business cannot operate without them. These situations should be reviewed with the local health department on a case-by-case basis, with home quarantine being the preferred method of addressing close contacts. If the employee develops symptoms of COVID-19 or tests positive for SARS-CoV-2, exclusion guidance for employees suspected or confirmed to have COVID-19 should be followed. If the employee tests negative during the quarantine period, they must continue to quarantine for the full 14 days.

If a business is unable to operate without the critical infrastructure employee, the employee (except for education sector workers, who should follow the public health quarantine guidance for non-essential workers listed in FAQ 27 and outlined here) may return to work (not undergo quarantine) as long as:

• Employers pre-screen the employee (temperature checks)
• Employers conduct regular monitoring of employee
• Employee wears a face mask at all times for 14 days after last close contact
• Employee maintains 6 feet of physical distance from all persons outside their household
• Employer ensures work space is routinely cleaned and disinfected

However, anyone who has been exposed through close contact with someone with COVID-19 does NOT need to stay home when the exposed person:

• developed COVID-19 illness within the previous 3 months,
• has recovered, and
• remains without COVID-19 symptoms (for example, cough, shortness of breath)

Close contacts of a known COVID-19 case who are not experiencing symptoms should be quarantined at home until 14 days have passed since last contact with the COVID-19 case or, if contact is ongoing (such as living together in a household), 14 days after the COVID-19 patient has been released from isolation, which may result in exclusion for up to 24 days.

NOTE:  If the employee is a household contact of a person with COVID-19 and the employee is able to have complete separation from the ill person (meaning no contact, no time together in the same room, no sharing of any spaces, such as the same bathroom or bedroom), the employee may follow the timeline for non-household contact.

If the employee develops symptoms of COVID-19 or tests positive for SARS-CoV-2, exclusion guidance for employees suspected or confirmed to have COVID-19 should be followed. If the employee tests negative during the quarantine period, they must continue to quarantine for the full 14 days.

However, anyone who has been exposed through close contact with someone with COVID-19 does NOT need to stay home when the exposed person:

• developed COVID-19 illness within the previous 3 months,
• has recovered, and
• remains without COVID-19 symptoms (for example, cough, shortness of breath)

Further details are available here.

Employers must follow appropriate quarantine requirements discussed in FAQs 26 and 27 for employees who were close contacts of a COVID-19 case before allowing such employees to return to work.

No. It is possible for an employee to test negative for SARS-CoV-2 after the close contact and still develop symptoms of COVID-19 up to 14 days after the close contact.  Employers and employees must follow appropriate quarantine requirements discussed in FAQs 26 and 27 for employees who were close contacts of a COVID-19 case before allowing such employees to return to work.

16VAC25-220-20 defines the term “Suspected to be infected with SARS-CoV-2 virus” as:

“a person who has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2, and no alternative diagnosis has been made (e.g., tested positive for influenza).”

If an employee HAS HAD “close contact” with a COVID-19 case and developed signs or symptoms, but tested negative for SARS-CoV-2, the employee should remain under quarantine for 14 days after last close contact with the COVID-19 case.  Although not defined in the ETS, the Virginia Department of Health (VDH) and the CDC define “close contact” as meaning “you were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more; you provided care at home to someone who is sick with COVID-19; you had direct physical contact with the person (hugged or kissed them); you shared eating or drinking utensils; or they sneezed, coughed, or somehow got respiratory droplets on you.”^[1]

However, if the employee DID NOT have close contact with a COVID-19 case or an area with substantial COVID-19 transmission, but does have signs or symptoms and tested negative for

SARS-CoV-2, the negative test can be considered as supporting an “alternative diagnosis”, and the person would not be considered suspected to be infected with SARS-CoV-2 virus.  The employee must remain out of work until signs and symptoms have resolved and the employee has been fever-free for at least 24 hours without the use of fever-reducing medicine (unless symptoms are due to a known non-infectious cause, such as allergies).

NOTE:  It is important to remember that a negative test for SARS-CoV-2 only means that the person wasn’t infected at the time the test was taken. If the person is ill one week, tests negative for SARS-CoV-2, and recovers from their illness, only to become ill again soon after, there is always the potential that the repeat illness may be related to COVID. Each illness should be handled as a distinct situation, meaning, the employee should not always be considered to be COVID-19 negative because they tested negative previously.

Per the U.S. Department of Health and Human Services’ (HHS) guidance on employers and health information in the workplace, HIPAA’s privacy rule does not protect employment records, even if the information in those records is health-related. In most cases, the Privacy Rule does not apply to the actions of an employer.

Per HHS’ HIPAA information for professionals, the HIPAA Rules apply to covered entities and business associates.

HIPAA-covered entities include health plans, clearinghouses, and certain healthcare providers (e.g., providers who submit HIPAA transactions, like claims, electronically). A business associate is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. A member of the covered entity’s workforce is not a business associate.  A covered health care provider, health plan, or health care clearinghouse can be a business associate of another covered entity.

Specifically, the Department of Health and Human services states “Individuals, organizations, and agencies that meet the definition of a covered entity under HIPAA must comply with the Rules’ requirements to protect the privacy and security of health information and must provide individuals with certain rights with respect to their health information. If a covered entity engages a business associate to help it carry out its health care activities and functions, the covered entity must have a written business associate contract or other arrangement with the business associate that establishes specifically what the business associate has been engaged to do and requires the business associate to comply with the Rules’ requirements to protect the privacy and security of protected health information. In addition to these contractual obligations, business associates are directly liable for compliance with certain provisions of the HIPAA Rules. If an entity does not meet the definition of a covered entity or business associate, it does not have to comply with the HIPAA Rules. See definitions of ‘business associate’ and ‘covered entity’ at 45 CFR 160.103.”

Employers should not forget that HIPAA does apply to an employer’s request for health information from a covered entity. A covered entity may not disclose protected health information to an employer without the employee’s authorization or as otherwise allowed by law. This is true even where the employee is also a patient or member of the covered entity; information maintained in that capacity may not be shared with human resources or an employee’s managers, except as expressly authorized by the employee or applicable law.

Additional information about compliance with HIPAA privacy standards can be found here.

Yes. The U.S. Department of Health and Human Services permits covered entities and business associates to disclose protected health information without authorization for specified public health purposes. Further information is available here.

Yes. The U.S. Equal Employment Opportunity Commission (question B3) states an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

OSHA and states that operate their own occupational safety and health plans, such as VOSH, are not a “covered entity” under HIPAA and are not bound by the use and disclosure requirements included in the HIPAA privacy statute or implementing regulations.

16VAC25-220-40.B.8.d and -40.B.8.e require employers to report certain positive COVID-19 cases involving employees “present at the place of employment within the previous 14 days from the date of positive test”:

1. The Virginia Department of Health within 24 hours of the discovery of a positive case; and

1. The Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with Emergency Temporary Standard (ETS) Sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies.  The portal went live on Monday, September 28, 2020.  Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

If your business obtained the worker from a temporary staffing agency and your company supervises them onsite, the worker is not a “contractor” but a temporary employee of the business (commonly referred to as the “host employer”).  In temporary employment situations, the host employer is considered to be in a “joint employment” relationship with the temporary staffing agency.

Here is an FAQ on the subject of temporary employees (§10, FAQ 12):

12. Does the ETS apply to temporary employees and temporary staffing agencies?

Yes.  16VAC25-220-30 defines “Employee” as “an employee of an employer who is employed in a business of his employer. Reference to the term “employee” in this standard also includes, but is not limited to, temporary employees and other joint employment relationships, persons in supervisory or management positions with the employer, etc., in accordance with Virginia occupational safety and health laws, standards, regulations, and court rulings.” (Emphasis added).

The roles and responsibilities of temporary staffing agencies and host employers with regard to temporary employee training and other requirements under the ETS are the same as for any other VOSH or OSHA standard.  See the following for general guidance:

https://www.osha.gov/temp_workers/index.html

https://doli.dev.sitevision.com/conronavirus-covid-19-faqs/

With regard to the notification issue, either the host employer or the staffing agency has to notify VOSH – if neither reports it, then both employers could be subject to citation.

The host employer can make an arrangement with the temporary staffing agency that the temporary agency will be the one to notify VOSH, but the host employer needs to make sure that the notification is submitted to avoid any chance of citation.

Here is a link to the reporting portal for whichever employer chooses to do the reporting:

https://redcap.vdh.virginia.gov/redcap/surveys/?s=LRHNP89XPK

The change is also requested to conform to VDH’s definition of a COVID-19 “outbreak”, which is defined as two COVID-19 cases epidemiologically linked by person, place, and time. While VOSH cannot accommodate VDH’s request to amend the ETS at this time, it acknowledges the current requirement to report single positive COVID-19 cases poses resource problems for both agencies.

In light of this request, can employers begin only reporting two or more positive cases under the ETS in accordance with VDH’s request and not be cited for a violation of 16VAC25-220-40.B.8.d?

Yes. Although it would still be considered a de minimis violation of the ETS (see discussion of a de minimis violation below), DOLI has concluded that employers no longer need to report single COVID-19 positive cases to VDH, in order to comply with the ETS.

Instead, employers shall report to VDH within 24 hours of the discovery of two or more of its own  employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period.

After the initial report of outbreak (two or more cases), employers shall continue to report all cases to VDH until the local health department notifies the business that the outbreak has been closed.  After the outbreak is closed, subsequent identification of two or more cases of COVID-19 during a declared emergency shall be reported, as above.

NOTE:  This FAQ does not impact mandatory public health disease reporting requirements to VDH for physicians, directors of laboratories, and directors of medical care facilities.  These disease reporting requirements remain and are separate and distinct from this DOLI standard (e.g., a physician still has to report single COVID-19 cases to VDH for purposes of disease surveillance reporting).

Background

If an employer decides to forego strict compliance with 16VAC25-220-40.B.8.d and only report two or more positive COVID-19 cases present at the place of employment within the previous 14 days from the date of a positive test, VOSH will consider it to be a de minimis violation of the ETS and not subject to citation.

Va. Code §40.1-49.4.A.2 provides:

“The Commissioner may prescribe procedures for calling to the employer’s attention de minimis violations which have no direct or immediate relationship to safety and health.”  (Emphasis added).

The VOSH Field Operations Manual (FOM) describes the Commissioner’s procedures for de minimis violations in Chapter 10, pp. 38-39:

De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Compliance Officers identifying de minimis violations of a VOSH standard shall not issue a citation for that violation, but should verbally notify the employer and make a note of the situation in the inspection case file.  (Emphasis added).

DOLI and the Virginia Department of Health (VDH) have collaborated on a Notification Portal for employers to report COVID-19 cases in accordance with Emergency Temporary Standard (ETS) Sections 16VAC25-220-40.B.8.d and -40.B.8.e that satisfies COVID-19 reporting requirements for both agencies.  The portal went live on Monday, September 28, 2020.  Here is a link:

https://doli.dev.sitevision.com/report-a-workplace-fatality-or-severe-injury-or-covid-19-case/

“Very high” exposure risk hazards involve situations where employees are exposed to hazards or are required to perform job tasks that involve the use of aerosol-generating procedures on persons (either living or during autopsies) known or suspected to be infected with SARS-CoV-2 virus, or the collecting or handling of specimens from persons known or suspected to be infected with SARS-CoV-2 virus. The primary method for transmission of the SARS-CoV-2 virus is through airborne transmission.
“High” exposure risk hazards involve situations where employees are exposed to hazards or are required to perform job tasks that involve exposure inside six feet with known or suspected sources of SARS-CoV-2 as part of their job duties.
Very high and high exposure risk levels have the same mandatory requirements because working with known or suspected sources of the SARS-CoV-2 virus are mandatory job duty requirements for the exposed employees and involve a high probability of exposure to the virus because of the nature of the job duties performed and hazardous exposures experienced.

16VAC25-220-50.B.1.a and 1.b apply to “healthcare facilities and other places of employment treating, caring for, or housing persons with known or suspected to be infected with the SARS-CoV-2 virus” and requires that appropriate air handling systems are installed and maintained in accordance with the requirements of subdivision 1a and 1.b.

Laboratories that handle the SARS-CoV-2 virus would be one example of an employer not covered by 16VAC25-220-50.B.1 that would be covered by subdivision B.2 because they don’t treat, care for or house persons with known or suspected to be infected with the SARS-CoV-2 virus.

Please note that 16VAC25-220-50.B.2 applies to “air-handling systems where installed.”

No.  To determine the applicability of 16VAC25-220-50.B.6 to a laboratory, regardless of the work being undertaken, the employer must classify job tasks by risk level (very high, high, medium, and lower) based on employee exposures to workplace hazards.  See 16VAC25-220-40.B.

The classification of job tasks can be activity-specific to identify and mitigate risks associated with a particular job task (e.g., aerosol-generating procedures).  Accordingly, for purposes of compliance with 16VAC25-220-50.B, the use of special precautions associated with BSL-3 may only apply to a specific activity and any employee whose job tasks include that activity, not necessarily the entire laboratory and all employees of a laboratory not associated with that job task or risk classification.

Further, the use of special precautions associated with BSL-3 would not absolutely require a laboratory to satisfy every special safety practice, equipment, and facility requirement under BSL-3 and employers should refer to CDC guidance for determining which BSL practices and standards are appropriate to the job task.

In determining the applicability of 16VAC25-220-50.B to a job task, the employer must consider the following issues:

• CDC guidance applicable to the issue
• Risk Classification
• Application to Aerosol-Generating Procedures
• Use of Special Precautions Associated with BSL-3
• Application to Use of Decentralized and Point-of-Care Testing Outside of Laboratories

For a detailed explanation and guidance on the application of 16VAC25-220-50.B.6, view the interpretation which can be found here:  16VAC25-220-50.B.6 Interpretation

No. Section 60.A.1 specifically applies to “air-handling systems where installed”.

Section 60.B.1 provides that:
To the extent feasible, employers shall…Provide face coverings to suspected to be infected with SARS-C0V-2 non-employees to contain respiratory secretions until they are able to leave the site (i.e., for medical evaluation/care or to return home).
Section 30 provides that:
“Suspected to be infected with SARS-CoV-2 virus” means a person that has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2 and no alternative diagnosis has been made (e.g., tested positive for influenza).

While the ETS contains specific requirements for an employer to determine the level of exposure risk to the SARS-CoV-2 virus at its workplace (very high, high, medium, or lower risk), generally the determination in most workplace settings outside of healthcare and emergency response will result in either a medium or lower risk classification depending on whether employees are required to work inside six feet of other persons (employees, customers, etc.) or not.

Employers must first implement engineering, administrative, and work practice controls to eliminate or reduce the frequency of contact with others inside of six feet to the extent feasible.  Where it is not feasible to eliminate contact with others inside of six feet, medium risk employers must determine what level of personal protective equipment (PPE) must be provided and worn as the last line of protection for employees against the virus.

For medium risk job tasks, the ETS requires “employers to provide and employees to wear face coverings who, because of job tasks cannot feasibly practice physical distancing from another employee or other person if the [PPE] hazard assessment has determined that personal protective equipment, such as respirators or surgical/medical procedure masks, was not required for the job task.” 16VAC25-220-60.C.1.k.

The ETS also requires for medium risk job tasks “employers to provide and employees in customer facing jobs to wear face coverings.” 16VAC25-220-60.C.1.l.

Employers with hazards or job tasks classified as “medium” risk that employ eleven (11) or more employees (regardless of other classifications), must have a written Infectious Disease Preparedness and Response Plan” solely applicable to those employees that fall in the medium risk category.

The plan does not have to be submitted to VOSH unless it is specifically requested. It should be available for review if a VOSH inspection is conducted at the establishment.

As described in your question, a vendor would be considered an “independent contractor” and not an employee for purposes Virginia Occupational Safety and Health (VOSH) laws, standards and regulations.  As you noted, the COVID-19 Emergency Temporary Standard requirement for an Infectious Disease Preparedness and Response Plan applies to employers with hazards or job tasks classified as medium when they have 11 or more employees.

Accordingly, only those farmer’s market organizers that have 11 or more employees, or those vendors who have 11 or more employees are required to have an Infectious Disease Preparedness and Response Plan.  The vendors would not be considered employees of the farmer’s market organizer.

However, in case you are not aware of the issue, the Department wants to make sure you are familiar with an employment practice where some businesses will attempt to misclassify employees as “independent contractors” to avoid having to comply with federal and state legal protections for employees (e.g., workers’ compensation, occupational safety and health protections, unemployment compensation, etc.).  This practice is referred to as “misclassification” and when attempted by an employer can result in serious enforcement consequences from a variety of agencies including VOSH, the Virginia Employment Commission, the Virginia Department of Taxation, etc.  Employers who engage in misclassification also open themselves up to the potential of being sued by employees who allege they were misclassified (See Va. Code 40.1-28.7:7, https://law.lis.virginia.gov/vacode/40.1-28.7:7/ ).

Here is a link to VOSH policy on the issue of worker misclassification for your information: https://doli.dev.sitevision.com/vosh-programs/misclassification-in-the-workplace/

Based on the description of the contractual relationship you described below between farmer’s market organizers and vendors, it does not appear that misclassification should be an issue for your organization, but we want to make sure you were aware of the issue.

Yes. OSHA (and VOSH) have “a long and consistent history of interpreting its standards and other requirements to require employers to present information in a manner that their employees can understand.”

“In practical terms, this means that an employer must instruct its employees using both a language and vocabulary that the employees can understand. For example, if an employee does not speak or comprehend English, instruction must be provided in a language the employee can understand. Similarly, if the employee’s vocabulary is limited, the training must account for that limitation. By the same token, if employees are not literate, telling them to read training materials will not satisfy the employer’s training obligation. As a general matter, employers are expected to realize that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in language other than English….”

“Many OSHA standards require that employees receive training so that work will be performed in a safe and healthful manner. Some of these standards require “training” or “instruction,” others require “adequate” or “effective” training or instruction, and still others require training “in a manner” or “in language” that is understandable to employees. It is the Agency’s position that, regardless of the precise regulatory language, the terms “train” and “instruct,” as well as other synonyms, mean to present information in a manner that employees receiving it are capable of understanding. This follows from both the purpose of the standards — providing employees with information that will allow work to be performed in a safe and healthful manner that complies with OSHA requirements — and the basic definition that implies the information is presented in a manner the recipient is capable of understanding.”

NOTE: It is VOSH’s intent to provide outreach, education, and training materials on the ETS in English and Spanish.

16VAC25-80.C provides in part that:

Employers covered by 16VAC25-220-50 shall verify compliance with 16VAC25-220-80.A by preparing a written certification record for those employees exposed to hazards or job tasks classified as very high, high, or medium exposure risk levels. The written certification record shall contain the name or other unique identifier of the employee trained, the trained employee’s physical or electronic signature….(Emphasis added).

Although it would still be considered a technical violation of the ETS (see discussion of a de minimis violation below), based on the description of your online learning management system’s access and security precautions, your company’s ability to demonstrate that training was accessed by passwords and usernames unique to each employee is deemed to be the functional equivalent of the electronic signature provision in the ETS.  Your company does not need to collect signatures from the employee and employer to satisfy the ETS.

The purpose of the signature requirement in 16VAC25-220-80.C is to assure that employees actually received the training required under the ETS.  Va. Code §40.1-49.4.A.2 provides:

“The Commissioner may prescribe procedures for calling to the employer’s attention de minimis violations which have no direct or immediate relationship to safety and health.”  (Emphasis added).

The VOSH Field Operations Manual (FOM) describes the Commissioner’s procedures for de minimis violations in Chapter 10, pp. 38-39:

De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Compliance Officers identifying de minimis violations of a VOSH standard shall not issue a citation for that violation, but should verbally notify the employer and make a note of the situation in the inspection case file.  (Emphasis added).  The criteria for classifying a violation as de minimis are as follows:

1. Employer Complies with Clear Intent of Standard.

An employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health. These deviations may involve distance specifications, construction material requirements, use of incorrect color, minor variations from recordkeeping, testing, or inspection regulations, or the like.

Employees are required to be trained by the respective dates you mentioned. An employer would only have to “prove” that employees had been trained in the context of a Virginia Occupational Safety and Health (VOSH) inspection or an informal investigation (by phone/fax/email) that had been opened with the company.  VOSH standard operating procedure in such cases is to ask the employer for any documentation the company has to demonstrate that employees had been trained and the employer is normally given a reasonable amount of time to provide the documentation.

No. Pursuant to Va. Code §40.1-51.2:1, employees are protected from discrimination when they engage in activities protected by Title 40.1 of the Code of Virginia (“because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.”).
Whether an employee engaged in a “protected activity” under Title 40.1 is very fact specific, but can include occupational safety and health information shared by an employee about their employer on a social media platform in certain situations.
With regard to the specific situation described above, §90.C provides that:
No person shall discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media. (Emphasis added).
Where “a person is lying on social media,” such an act by an employee would not be considered “reasonable” under the ETS and disciplinary action taken against the employee in accordance with the employer’s human resource policies would not be considered “discrimination” under the ETS/ER or Va. Code §40.1-51.2:1.
For further background see §16VAC25-60-110. Whistleblower Discrimination; Discharge or Retaliation; Remedy for Retaliation:
A. In carrying out his duties under § 40.1-51.2:2 of the Code of Virginia, the commissioner shall consider case law, regulations, and formal policies of federal OSHA. An employee’s engagement in activities protected by Title 40.1 does not automatically render him immune from discharge or discipline for legitimate reasons. Termination or other disciplinary action may be taken for a combination of reasons, involving both discriminatory and nondiscriminatory motivations. In such a case, a violation of § 40.1-51.2:1 of the Code of Virginia has occurred if the protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place “but for” engagement in protected activity. (Emphasis added).
Employee whistleblower activities, protected by § 40.1-51.2:1 of the Code of Virginia, include:

1. Making any complaint to his employer or any other person under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

2. Instituting or causing to be instituted any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

3. Testifying or intending to testify in any proceeding under or related to the safety and health provisions of Title 40.1 of the Code of Virginia;

4. Cooperating with or providing information to the commissioner during a worksite inspection; or

5. Exercising on his own behalf or on behalf of any other employee any right afforded by the safety and health provisions of Title 40.1 of the Code of Virginia.

Here is a link to the Office of Whistleblower Protection with the Department of Labor and Industry’s (DOLI) Virginia Occupational Safety and Health (VOSH) program:

https://doli.dev.sitevision.com/vosh-programs/whistleblower/

As noted in the above link:

Workers in Virginia have the right to complain to VOSH and seek an investigation of alleged workplace safety and health retaliation. Virginia Code §40.1-51.2:1 and -51.2:2 authorizes VOSH to investigate employee complaints of employer  retaliation against employees who are involved in safety and health activities protected under the Virginia laws, standards and regulations.

In addition, the recent Emergency Temporary Standard (ETS) for COVID-19, 16VAC25-220, has provisions regarding whistleblower protections in 16VAC25-220-90:

https://doli.dev.sitevision.com/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf