By Shoshana E. Rothman of Smith Currie & Hancock LLP
Published July 28, 2020
As previously reported by Smith Currie, Virginia is the first in the nation to adopt state-wide emergency regulations to protect employees from COVID-19 by establishing requirements for employers for the control, prevention, and mitigation of the spread of the virus. Those standards have now gone into effect as of July 27, 2020, and the final regulation can be accessed on the website for the Virginia Department of Labor and Industry at the link here. The regulation applies to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the Virginia Occupational Safety and Health Administration.
The Emergency Temporary Standard classifies construction, both indoor and outdoor construction, as a “medium” risk category, requiring, among other things, implementation of procedures for ensuring air quality, PPE requirements, physical distancing requirements, sanitation requirements, training, and workplace hazard assessments. Given the cost and time impact that may result from implementing this regulation, construction contractors in the Commonwealth of Virginia should look at their contract terms to determine if relief is available to offset any corresponding impacts. Contractual terms requiring notice of any impacts should also be strictly adhered to in order to preserve contractual rights.
Specifically, the Emergency Temporary Standard requires employers in the construction industry to:
- Discuss with subcontractors the importance of those infected with COVID-19 of staying at home, and that infected subcontractors shall not report to or remain at any a work site until cleared to return to work.
- Establish a system to receive reports of positive COVID-19 tests by employees and subcontractors, and notify other employees who may have been exposed within 24 hours of possible exposure.
- Notify the building or facility owner of any employees located in a building who tests positive for COVID-19, as well requirements for notifying the Virginia Department of Labor and Industry.
- Implement policies for the return to work of any known or suspected employees with infections. Guidance for a return to work policy is provided in the new standard.
- Mandate physical distancing of employees. Access to common areas shall be closed or controlled to limit occupancy. When physical distancing
- cannot be maintained, employers shall ensure compliance with respiratory protection and PPE applicable to the industry.
- Establish sanitation protocols for common spaces, including bathrooms and frequently touched surfaces.
- Ensure that air-handling systems are appropriate to address COVID-19 by being maintained per manufacturing instructions. There is additional compliance requirements to ensure that engineering controls comply with the minimum American National Standards Institute (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2 (ASHRAE 2019a, 2019b), which include requirements for outdoor air ventilation in most residential and nonresidential spaces, and ANSI/ASHRAE/ASHE Standard 170 (ASHRAE 2017a).
- Implement administrative and work practice controls to prescreen employees, provide face coverings to non-employees, implement flexible worksites and work hours, install physical barriers to aid in mitigating the spread of the virus, implement flexible meeting and travel options, and deliver services remotely.
- Develop and implement a written Infectious Disease Preparedness and Response Plan for contractors with more than 11 employees.
- Provide training to employees on the hazards and characteristics of COVID-19.
The Emergency Temporary Standard is effective for six months, and shall expire (i) 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 (ii) when repealed by the Virginia Safety and Health Codes Board.
Shoshana E. Rothman is a Partner with Smith Currie & Hancock LLP. She practices complex commercial litigation, with an emphasis on construction law, suretyship, and government contracts. She can be reached at serothman@smithcurrie.com or 703.506.1990.