What Virginia’s New COVID-19 Regulations Mean for Health Care Employers

Troutman Pepper
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Troutman Pepper

Who Needs to Know
All Virginia Health Care Employers.

Why It Matters
Virginia’s ETS will require health care employers to reexamine and modify existing protocols, policies, and procedures to ensure compliance.


On August 12, 2020, Troutman Pepper published an advisory summarizing the workplace requirements of Virginia’s new COVID-19 Emergency Temporary Standards (ETS) for infectious disease prevention. While most of the ETS is already in effect for Virginia employers, the employee training and infectious disease preparedness and response plan requirements go into effect on August 26, 2020 and September 25, 2020, respectively. The Virginia Department of Labor and Industry (DOLI) published tools and fact sheets on its website to assist with employer compliance. In this advisory, we focus specifically on the rules applicable to health care employers, which are subject to stricter safeguards due to their employees’ potential to directly engage with patients who have COVID-19. While many components of the ETS will seem familiar due to its similarity to CDC and federal OSHA requirements, Virginia’s ETS will nonetheless require health care employers to reexamine and modify existing protocols, policies, and procedures to ensure compliance.

As previously described, the ETS first requires that employers assess the workplace for hazards and job tasks that can expose employees to COVID-19. Based on this assessment, employees may have tasks that are classified on a spectrum of risk levels from Lower to Very High. Health care employers may have employees falling into each of the different risk groups. For example, the following is a breakdown of how certain health care jobs may fall under the ETS risk classification:

  • Very High Risk. A respiratory therapist intubating COVID-19 positive patients or providers performing nasal swabs to collect a sample for COVID-19 testing. Due to direct contact with and performing aerosol-generating procedures or specimen collections on persons known or suspected to be infected with COVID-19, these employees are classified as Very High risk.
  • High Risk. A nurse working the COVID-19 floor of a hospital or in a provider’s respiratory clinic. While the nurse may not have direct interactions with COVID-19 patients, the nurse may be within six feet of such persons and may therefore fall into the High risk classification.
  • Medium Risk. A gastroenterologist performing a colonoscopy on a patient not known or suspected to be infected with COVID-19. This position includes job tasks requiring occupational contact within six feet of other persons who may be infected (although not suspected to be), rendering it Medium risk.
  • Lower Risk. A billing specialist submitting claims to third-party payors. This job is unlikely to have tasks requiring more than minimal occupational contact with others inside of six feet and is therefore Lower risk.

Employee Training

By August 26, 2020, employers are required to provide COVID-19 training for all employees. However, employers with any employees at a Medium or above risk level must provide a more rigorous training, evidenced by detailed written certification, and must include at a minimum: 

  • An overview of the requirements of the ETS, to include the antidiscrimination provisions;
  • Mandatory and non-mandatory recommendations in any CDC or Commonwealth of Virginia guidance that the employer is complying with in lieu of compliance with an ETS standard;
  • Characteristics and methods of transmission of COVID-19;
  • Risk factors of severe COVID-19 illness with underlying health conditions;
  • Awareness of the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the virus;
  • Safe and healthy work practices, including but not limited to physical distancing, disinfection procedures, disinfecting frequency, ventilation, and noncontact methods of greeting;
  • When PPE is required, what’s required, and how to properly don, doff, adjust and wear PPE;
  • The limitations of PPE;
  • The proper care, maintenance, useful life, and disposal of PPE and heat-related illness prevention including the signs and symptoms of heat-related illness; and
  • The employer’s Infectious Disease Preparedness and Response Plan (if applicable).

Since all health care providers are likely to have employees who are Medium risk, health care providers must have their employees complete the more rigorous training by August 26, 2020. Template training materials are available from the DOLI on its website and can be customized by health care providers based on their specific circumstances and risks. 

Infectious Disease Preparedness and Response Plan

By September 25, 2020, employers who have at least one employee who falls within the High or Very High risk hazards, in addition to employers with Medium risk hazards employing 11 or more employees, must develop and implement an Infectious Disease Preparedness and Response Plan (Pla”) and designate a responsible person who is knowledgeable in infection control principles and practices as they apply to the facility or service. As with the more rigorous COVID-19 training, all health care providers are likely required to complete a written Infection Disease Preparedness and Response Plan.

Health care providers may find that they have already considered and implemented various policies and procedures that address certain aspects of the required Infectious Disease Preparedness and Response Plan. To the extent they have done so, to comply with the ETS, these considerations, policies and procedures must be documented in writing. A template plan is available from the DOLI on its website and can be customized by health care providers based on their specific circumstances and risks.

Standards

As noted in the earlier advisory, the ETS requires all employers adopt a variety of policies, including a system for receiving reports of known or suspected COVID-19 cases; rapid notification to interested parties upon discovery that an employee is infected with COVID-19; return-to-work strategies; and enforcing physical distancing, among others. In addition to these requirements, the ETS imposes additional controls on employers with employees subject to Medium, High, and Very High risk hazards. The following is a breakdown of the general categories of requirements with which employers will be required to comply, depending on the hazards and risk level of job tasks being performed at the worksite.

Standards

Lower

Medium

High

Very High

Workplace Risk Assessment

       

Risk assessment reduced to writing with detailed employee certification requirements

 

X

X

X

Engineering Controls

       

Air Handling System requirements

 

X

X

X

Airborne Infection Isolation Room (AIIR) required for COVID-19 known/suspected patients in the hospital and when performing aerosol-generating procedures on known/suspected COVID-19 persons

   

X

X

DHHS Biosafety Level 3 Precautions when handling known/suspected COVID-19 specimens

   

X

X

Physical barriers where effective to mitigate spread of COVID-19

 

X

X

X

Administrative and Work Practice Controls

       

Pre-shift COVID-19 screening of employees

 

X

X

X

Limit non-employee access to place of employment

   

X

X

Enhanced medical monitoring of employees during a COVID-19 outbreak

   

X

X

Provide psychological and behavioral support to employees at no cost

   

X

X

Provide face coverings to nonemployees suspected of COVID-19 infection to be worn until they can leave the worksite

 

X

X

X

Adopt flexible worksites, meeting, hours (staggered shifts), and travel options

 

X

X

X

Require physical distancing of at least six feet between persons

X

X

X

X

Require products delivered via remote or curbside delivery

 

X

X

X

Personal Protective Equipment (PPE)

       

Provide appropriate PPE to affected employees, if necessary due to COVID-19 hazards or job tasks 

 

X

X

X

Implement OSHA-compliant respiratory protection program

   

X

X

Provide employees with specified protective gear and respirator when inside six feet of persons known/suspected of COVID-19 infection

   

X

X

The above is a general summary of key standards, which may be subject to “feasibility” or “availability” exceptions. Moreover, the presence of a higher risk hazard may create obligations for the employer to all its employees, irrespective of individual risk classification. Accordingly, achieving compliance will vary upon the specifics of the workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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