COVID-19 has disrupted daily life as we know it, and it’s no different for our Harrisonburg and Staunton lawyers at Wharton Aldhizer & Weaver.
COVID-19 continues to impact small businesses in our community. Working with a highly-qualified Harrisonburg and Staunton lawyer can help.
A global pandemic, civil unrest, and a tumultuous election season have made 2020 a highly unusual year.
Lauren R. Darden
The Virginia Occupational Safety and Health (VOSH) Program and Virginia Department of Labor and Industry (DOLI) have put into place an Emergency Temporary Standard (COVID-19 Regulations)[i], making Virginia the first state in the United States to have mandatory workplace health and safety requirements related to COVID-19.
Why should I care about these new COVID regulations?
The COVID-19 Regulations are effective now– as of July 27, 2020–and Virginia employers must take note. These COVID-19 Regulations are complex, thorough, and impose significant requirements, some with specific deadlines. Employers who have been following CDC recommendations likely have a good start on complying with the new requirements, but must carefully compare their COVID-19 mitigation efforts to Virginia’s very specific requirements. Whether you are an essential business that as continued operations through the beginning of the pandemic, are slowing returning more workers to the workplace, or are just now re-opening, it is essential that you carefully review the new COVID-19 Regulations and implement them.
Failure to comply with the COVID-19 Regulations can result in enforcement actions, legal proceedings, and fines of $13,047 per each serious violation. Egregious or “willful” violations can lead to fines of $130,463 per violation. Additionally, employers face inspections and the time and costs of compliance if inspections occur.
Who is covered? The majority of employers with two or more employees in Virginia are covered—including almost all private and public employers, as well as non-profits.
What must employers do and when must they do it?
The COVID-19 Regulations create significant requirements with steps that must be taken (1) immediately, (2) by August 26, 2020, and (3) by September 25, 2020.
Effective IMMEDIATELY you must:
- Determine Exposure: Importantly, the legal obligations for employers are not one-size-fits-all. The COVID-19 Regulations require employers to assess workplace hazards and job tasks that their employees perform, and then classify those job tasks into one of the following categories—known as the exposure risk level:
- Very high: risk hazards or job tasks in places of employment with high potential for employee exposure to known or suspected sources of the SARS-CoV-2 virus, including during some specific medical, postmortem, or laboratory procedures;
- High: risk hazards or job tasks in places of employment with high potential for employee exposure inside six feet with known or suspected sources of the SARS-CoV-2 virus, including many healthcare and first responder settings;
- Medium: risk hazards or job tasks not otherwise classified as very high or high exposure risk in places that require more than minimal occupational contact inside six feet with other persons who may be infected with SARS-CoV-2, but are not known or suspected to be infected. Examples are numerous and include retail stores, meat and poultry processing, restaurants and bars, commercial transportation of passengers, schools; daycare; salons and spas, other healthcare situations and care facilities, and contact tracers.
- Lower: risk hazards or job tasks not otherwise classified as very high, high, or medium and that do not require contact inside six feet with others (e.g. as in an office setting) or are able to achieve minimal occupational contact through controls, such as physical barriers, teleworking, staggered work shifts, delivering services remotely, and mandatory physical distancing.
Depending on the exposure risk levels present at the workplace, the employer is then obligated to assess and comply with varying levels of engineering, administrative, work practice, and personal protective equipment controls to limit exposure. The controls that may apply are wide-ranging — from required air handling systems, to face coverings, curbside delivery, telework, flexible work hours and worksites, and/or physical barriers, among others.
- Where possible, ensure that employees observe six feet physical distancing, and, where not possible, comply with respiratory protection and personal protective equipment standards in the industry;
- Close or control access to common areas, breakrooms, and lunchrooms; require cleaning and disinfecting after use; and provide hand washing facilities and hand sanitizer to employees in these spaces;
- Sanitize and disinfect:
- Surfaces contacted during interaction with customers, the general public, and others;
- Areas where known or suspected infected persons accessed or worked;
- All common spaces, shared equipment, workspaces, and vehicles;
- Areas in the place of employment to otherwise comply with VOSH industry sanitation standards;
- Ensure approved cleaning and disinfecting products are readily available to employees and that manufacturer’s instructions for use of these products are complied with;
- Provide easy, frequent access and permission to use soap and water and hand sanitizer, where feasible, especially for employees assigned to a work station with frequent interaction inside six feet and employees who work on mobile crews; and
- Prevent cross-contamination between job tasks.
- Provide personal protective equipment (PPE) when other controls are not feasible or do not provide sufficient protections;
- Inform employees of the methods of self-monitoring for signs and symptoms of COVID-19 and encourage employees to self-monitor;
- Ensure sick leave policies are flexible and consistent with public health guidance and the Families First Coronavirus Response Act, and that employees are aware of these policies.
- Develop and implement policies and procedures for employees to report:
- Symptoms consistent with COVID-19 where no alternative diagnosis has been made.
- Positive COVID-19 tests by employees, subcontractors, contract employees, and temporary employees present at the employer’s workplace within the previous 14 days from the date of the positive test.
- Do not permit employees known to be infected with COVID-19 or “suspected to be infected” with COVID-19 based on symptoms to report to or remain at the worksite or at another location, except for teleworking;
- Notify individuals who may have been exposed within 24 hours of learning of a positive COVID-19 test of an individual who was in the workplace within 14 days from the date of the positive test:
- Employees who may have been exposed (while maintaining confidentiality of the person(s) testing positive);
- Other employers whose employees were present at the workplace (while maintaining confidentiality of the person(s) testing positive);
- The building or facility owner where the workplace is located;
- The Virginia Department of Health; and
- The Virginia Department of Labor and Industry if three or more employees present at the place of employment within a 14-day period test positive.
- Develop and implement policies for known and suspected positive employees to return to work using either a symptom-based or test-based strategy, including for employees known to be infected, but who were asymptomatic;
- Cover the cost of COVID-19 testing required by the employer for return to work purposes; and
- Ensure compliance with mandatory requirements of any Virginia executive order or order of public health emergency.
By AUGUST 26, 2020, you must Train and Educate employees:
- Employers with hazards or job tasks that are classified as very high, high or medium exposure risk must provide training to all employees at that place of employment on a variety of COVID-related topics, safe and healthy work practices, and the requirements and protections of the new regulations. Employees must retain training certification records for each employee.
- For employers with only lower risk jobs, they must provide orally or in writing information concerning COVID-19 hazards, symptoms and measures to minimize exposure, as well as requirements of the new regulations. The easiest way to comply with this is to post an information that the Department of Labor and Industry is developing.
- Employers must retrain employees on these topics if they have reason to believe they have not developed understanding and skills required by the regulations, including where (1) there are changes in the workplace, job tasks, or COVID hazards in the workplace; (2) there are changes to the employer’s Infections Disease Preparedness and Response Plan; or (3) the employee shows inadequate knowledge or use of measures to control the spread of COVID-19.
- The Department of Labor and Industry has provided some resources for training and education, here: https://www.doli.virginia.gov/covid-19-outreach-education-and-training/
By SEPTEMBER 25, 2020: Written Infectious Disease Preparedness and Response Plan:
- Employers with hazards or job tasks classified as very high or high, or medium with eleven or more employees must also develop and implement a written Infectious Disease Preparedness and Response Plan. This is a detailed and comprehensive plan with multiple subparts required by the COVID-19 Regulations.
- Employers who must develop an Infectious Disease Preparedness and Response Plan must train employees on this plan on or before September 25, 2020.
The COVID-19 Regulations also prohibit employers from discriminating or retaliating against an employee for complaining about COVID-19 related safety conditions or for using their own personal protective equipment in the workplace. Employers cannot prohibit employees from wearing gloves, a mask, a respirator, or a face shield, employers cannot prohibit, unless doing so creates a greater hazard to the employee or to others.
It is important to note that the COVID-19 Regulations supplement and enhance existing VOSH rules, regulations, and standards. To the extent the new standard conflicts with an existing VOSH rule, regulation, or standard, the more stringent requirement applies.
Please be advised there are provisions of the COVID-19 Regulations that are not covered in this post, that this post is a summary, and that the above examples are not specific to every employer’s situation. This post is not meant to provide legal advice. Attorneys at Wharton, Aldhizer & Weaver are available to assist with compliance, as well as VOSH inspections and/or enforcement procedures, and to answer any questions on these matters.
[i] The full text of the Emergency Temporary Standard is here: https://www.doli.virginia.gov/wp-content/uploads/2020/07/RIS-filed-RTD-Final-ETS-7.24.2020.pdf
UPDATE: On May 6, 2020, the Virginia Supreme Court (SCOVA) entered an order extending the current judicial emergency (discussed in our previous blog posts) through June 7, 2020. Like the previous Emergency Declaration orders, the May 6 Order tolls statutes of limitation and other case-related deadlines for the period of the judicial emergency (now through June 7). However, the May 6 Order provides an exception for discovery, ordering the tolling of discovery deadlines in civil cases to terminate on May 18, 2020. In practice, this means that all civil discovery with a deadline that fell between March 16 and May 18 is now due within 21 days of May 18. The May 6 Order also authorizes individual state courts, in their discretion, to resume in-person, non-emergency civil hearings where it is deemed safe. However, the May 6 Order takes a hardline stance on jury trials, forbidding all jury trials through June 7. As with the previous Emergency Declaration Orders from SCOVA, the May 6 order left open the possibility for the judicial emergency period to be further extended.
Nursing homes throughout the country have been deeply affected by the COVID-19 pandemic, making headlines as outbreaks wreak havoc within the facilities. Nursing homes have been hit particularly hard by the virus in large part due to nursing home demographics: elderly individuals, many with underlying health conditions, living in close proximity to one another creates a perfect storm of virus vulnerability. While some factors affecting the spread of COVID-19 in long term care facilities are inherent to the populations to whom these facilities cater, there are steps that nursing homes are required to take to prevent or slow the spread of the virus. Nursing homes are required to follow federal and state regulations specifically enacted to control the spread of infection. Those regulations include requirements that each facility develop and implement policies and procedures to prevent and control airborne and non-airborne infection transmission, train staff regarding infection control measures, ensure all medical equipment (including PPE) is either properly disposed (for single use items) or thoroughly disinfected between each use (reusable items).
Additionally, in the past few months, the Centers for Medicare & Medicaid Services (CMS) issued separate memoranda setting forth COVID-19-specific precautions for long-term care facilities. The memoranda recommended additional precautions and measures for infection monitoring and control, including restricting the admission of visitors, screening all residents and staff for COVID-19 symptoms and promptly isolating residents or staff members with suspected COVID-19 infections, and ensuring communication of status changes to resident representatives and/or family members. Nursing homes must follow applicable regulations and otherwise take reasonable steps to prepare for and prevent the spread of COVID-19 within their facilities.
Ordinarily, a nursing home may be civilly liable if it failed to take reasonable steps to prevent the spread of a communicable illness or infection in its facility, resulting in the serious illness or death of a resident. However, cases related to the spread of COVID-19 in nursing homes may prove much harder, if not impossible, to bring. So far, the governors in a minority of states have entered executive orders extending civil immunity to healthcare providers during the COVID-19 pandemic. While Governor Ralph Northam has not yet issued an executive order to this effect, there has been a strong push for the grant of such immunity in Virginia. On April 7, 2020, a group of medical organizations in Virginia sent a letter to the Governor, requesting the issuance of an executive order granting civil and criminal immunity to health care providers who act in good faith. If entered, the proposed order’s broad immunity would prevent virtually all medical negligence lawsuits where the alleged negligence occurred during the declared state of emergency.
Even if the proposed executive order is not entered, a patient or family member’s ability to sue a nursing home for COVID-19-related negligence may be limited in other ways. For example, a Virginia statute applicable to “disasters” provides liability protection to health care providers during state or local emergencies, if the emergency “renders the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency…” Va. Code 8.01-225.02. While this statute does not preclude COVID-19 related litigation against a nursing home in cases involving gross negligence or willful misconduct (higher levels of misconduct), it will likely prove extremely challenging to establish what constitutes gross negligence or willful misconduct in the face of an unprecedented pandemic.
While COVID-19 did not make an appearance in the central Virginia and Harrisonburg/Rockingham regions until nearly two months after the first COVID-19 case was confirmed in the U.S., it has since spread quickly in the area. As of early April, sources tracking the spread of the virus reported the number of confirmed cases growing at a rate of 690% per week in Harrisonburg. By mid-April, local news sources were reporting outbreaks in local long- term care facilities. The first reported COVID-19 outbreak in the US occurred at a long-term care facility in Kirkland, Washington and was widely reported by news sources, giving facilities in our area ample time to prepare for such an outbreak in their own facilities. Given the months of advance notice provided to nursing homes in our area, a facility’s failure to adequately prepare for such an outbreak may be harder to excuse.
If you believe you or a loved one has contracted COVID-19 at a nursing home due to the facility’s failure to follow applicable regulations and otherwise take reasonable steps to prevent the spread of COVID-19, you should contact an attorney specializing in medical malpractice and nursing home litigation to discuss your particular situation. However, as noted above, would-be litigants must understand that medical and nursing home negligence cases involving COVID-19 must be approached cautiously, and many of these cases will not be viable based on existing statutory restrictions and proposed grants of broad immunity.
UPDATE: On April 10, 2020, the Virginia Supreme Court issued a memorandum stating that Virginia state court judges may, in their discretion and with the consent of the parties, conduct any civil or criminal matter by electronic video or telephonic communication. While this memorandum is certainly not a universal green light for all civil cases to resume, it at least opens the door to the possibility that certain civil matters can proceed, with the consent of the judge and the parties.
On April 22, 2020, the Virginia Supreme Court entered an order extending the judicial emergency, and the corresponding restrictions on Virginia state courts as outlined in our original blog post on April 10, 2020, through May 17, 2020. As with the first two Emergency Declaration Orders from SCOVA, the April 22 order left open the possibility for the judicial emergency period to be further extended.
The coronavirus (COVID-19) (“coronavirus”) has impacted many Virginian’s employment and income. If you are a parent paying child support pursuant to a child support order, you may be concerned about your ability to make your child support payments during these uncertain times.
The Department of Labor issued temporary regulations on April 1, 2020 for the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act (“FFCRA”)
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