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New State Mandated COVID Guidelines for Virginia Business

♪♫ “Hello DOLI!  Well, hello DOLI! It’s so nice to have you back where you belong.” ♬♩

Not the Carol Channing Broadway version you were expecting, was it?

This week’s post is on the new Virginia Department of Labor and Industry (DOLI) emergency standard that focuses on COVID-19 protections that must be implemented by employers based upon the level of risk to employees becoming infected as a result of them performing their job.  How did I find this out as a business owner you might ask when DOLI is just starting outreach efforts? That’s a funny story.

No sooner had DOLI announced the emergency standard than we received a frantic call from a client. Our client received an email from a consultant citing the new standard, pressuring them to pay $1,500 for training in 48 hours, and threatening that they were going to receive a $13K fine if they didn’t sign up for their training so that our client would come into immediate compliance.

My immediate reaction (since I have been dealing with government regulatory compliance agencies for years) was to call foul. While it is true that emergency standards can be issued from time-to-time, regulatory agencies do not normally start levying fines if people are not in compliance on Day 1.  They set a time period for compliance, then they work to educate those that have to comply , and if it’s ignored, they will then start enforcement.

Sensing something was amiss, my team and I immediately started looking into the new standard under the Virginia Administrative Code at 16VAC25-220 (Link: https://www.doli.virginia.gov/covid-19-outreach-education-and-training/). Our suspicions that this consultant unnecessarily scared the client were confirmed and here is what you need to know in case it happens to you:

  1. This is a temporary emergency standard issued under the Virginia Occupational Safety and Health (VOSH) Program for the prevention of COVID-19. It was officially published in the Richmond Times-Dispatch on July 27, 2020, and is in effect for six months. It applies to private, state, and local government employers in Virginia. For my non-Virginia readers, you should check your state’s labor department website to see if they have a similar standard as many of them are doing this to align with Federal government regulations and guidance.
  2. The standard focuses on what employers can do to evaluate their operations and prevent the spread of the virus. (To cut to the chase, the standard mostly follows the CDC guidelines that Dr. Fauci participated in developing, not the ones with reduced restrictions approved on August 20 when he was having throat surgery (Link: https://www.cnn.com/2020/08/26/politics/fauci-coronavirus-cdc-testing/index.html). Seriously. Can the man not have throat surgery in peace before someone starts to act the fool and make things worse while he is out of the office?!?!)
  3. So what does this mean to you? Many employers are already in compliance as employers are already taking a number of the prevention measures that DOLI now requires such as implementing new protocols for cleaning, requiring masks, not having people in close contact with each other unless needed, etc. With that in mind, I would like to highlight a few key items:
    • If three or more employees test positive for COVID-19 within a 14-day period in your business, then you need to report it to DOLI.
    • DOLI has a website with everything you need to understand the standard and get into compliance. (Link: https://whttps://www.doli.virginia.gov/)
    • They have a 9-step process to achieve compliance. It includes a self-assessment of the workplace to determine if and how employees can be exposed to the virus, altering office operations (i.e. using telework, social distancing) to prevent infection, having procedures to prevent sick employees from infecting healthy employees, and how the notification will be handled if someone gets sick and exposes other employees. Employers need to also ensure they are not discriminating against an employee if they get sick (Duh!).  Last but not least, if your employees are in jobs that put them in a high-risk classification for contracting COVID-19 (see below), then you must have an Infectious Disease Plan (DOLI even provides a free template), and providing staff training to prevent the spread of the disease (DOLI provides free training too). This is not groundbreaking stuff here, but things employers have been doing for several months or they would be out of business by now.
    • Here are the risk classifications for employees:
      • Low Risk: Minimal occupational contact (ex. teleworkers)
      • Medium Risk: More than minimal contact within six feet (ex. grocery store workers, hairdressers, fitness workers, and healthcare workers in settings without known sources of COVID-19)
      • High Risk: High potential for exposure within six feet (ex. hospital workers, home healthcare, dental staff, long-term care facility workers)
      • Very High: Extreme potential for exposure within six feet (ex. facilities with aerosol-generating processes, labs that process samples from people.
  1. Most companies fall into the low-risk category. If you are in the Medium to Very High categories, then you need to have had general COVID-19 prevention training by August 26, 2020 and you have to have an Infectious Disease and Preparedness and Response Plan (again DOLI provides a free template) completed and employees trained by September 25, 2020. Most, if not all, of the companies that would fall into the Medium to Very High categories have already addressed these items in response to the Governor’s re-opening requirements.
  2. THIS NEXT PART IS IMPORTANT. Employers who have less than 250 employees (i.e. most of us) are given priority to receive free consultation services from DOLI to implement these standards. They will even come on-site to your facility! You read that right. Free. On-site. Services. You do not need to pay someone to do this.  You also do not have to live in fear that you are going to receive a $13K fine for non-compliance.  The goal of the standard is to help employers and employees.  It is not to make a bad situation worse by levying fines on already struggling companies. I know this because I contacted DOLI and spoke to the program administrator handling this standard myself.  She responded immediately and said that DOLI’s focus is on educating employers, helping them to get into compliance, and giving them every opportunity to become compliant before a fine is even considered.  Again, they are not here to put stress on struggling companies.  Also, it is a long time before they consider levying fines against a company for non-compliance.  They take a number of things into consideration before even considering a fine such as:
    • Giving credit to the employer if they have been trying to get into compliance and take measures to prevent the spread of the virus.
    • The company’s past track record with DOLI and if there have been past chronic workplace safety issues.
    • The willingness of the employer to address it themselves and/or use the DOLI services to get into compliance.

I close by giving you the guidance that we give most of our clients.  Our gut reaction is the best risk indicator. If you receive a marketing call or email with high-pressure sales tactics and it doesn’t feel right, then it probably isn’t right.  Use that risk indicator to follow up with someone knowledgeable and trustworthy.  I am thankful our client reached out to us to ask us to verify.  It cost them nothing for us to check it out and we were happy to help.

Until next time… Stay agile. Stay safe. Stay sane.

– The Disaster Lady (a.k.a. Karen)