8/3/2020
Nine most frequently asked questions regarding the new mandatory Virginia COVID-19 workplace safety rules:
On July 15th, Virginia became the first state to issue mandatory COVID-19 workplace safety rules. The final text has now been released and the new rules, which apply to most private employers, went into effect July 27, 2020. Below, we’ve answered the top nine FAQs regarding the new Virginia workplace safety mandate.
1. When are these new workplace standards in effect?
July 27, 2020 through January 27, 2021, barring any additional action by state officials.
2. Which businesses and organizations have to comply?
All private, state, and local organizations, including non-profit organizations.
3. Are these mandates enforceable?
Yes, they are enforceable. If you do not comply, you run the risk of penalties and fines.
4. This is a lot of information. Where do I begin?
The Virginia Department of Labor and Industry has outlined “Nine Steps to Achieve Compliance,” which serves as a great starting point.
5. I see that the new standards mandate that employees who have reason to believe they are sick or have been exposed should not come into the office. Do I pay them while they are not in the office?
This depends on the situation, but generally, if an employee is awaiting the results of a test, whether or not they are symptomatic, and can provide a doctor’s note indicating that they should be under quarantine, that employee would qualify for up to 80 hours of Emergency Paid Sick Leave per the Families First Coronavirus Response Act (FFCRA). You will be reimbursed for these wages through a dollar-for-dollar, real-time federal tax credit. Please ask your payroll provider to set up separate earnings codes so these hours can be tracked properly. (customerservice@dominionpayroll.com)
6. What if an employee is not sick or under quarantine but is too scared to come back to work?
There is no clear guidance in the ETS for this situation. Communicate all of your safety protocols and precautions to your employees in an effort to minimize their fears. Make sure that you as manager/owner follow all procedures (e.g. Wear a face covering, observe social distancing, wash your hands). Remember: these standards are now enforceable, with penalties and fines at stake for non-compliance.
If the employee still will not report to work, determine if they can work from home.
If their job duties cannot be performed from home, you can 1) Put them on paid furlough status until they feel safe to return to work, 2) Ask them to take accrued PTO, 3) Put them on unpaid personal leave, or 4) terminate them.
7. What happens if an employee tests positive for Covid-19?
If an employee has reason to believe that they have been exposed to Covid-19, they should:
- Notify their supervisor.
- Do not come into the office/worksite.
- Seek a test AND a doctor’s note that indicates they should quarantine because they are waiting for test results (keep the doctors note in their personnel file lest you get audited at some point).
- If they can still work, they should work from home and be paid accordingly, as normal.
- If they are unable to work from home because their job cannot be performed there (even while they are waiting for test results), OR they are experiencing symptoms and are unable to work, they can take the Emergency Paid Sick Leave, which is up to 80 hours at full rate of pay. (You will need to track their hours separately via your payroll provider so that you can be reimbursed for those wages via tax credit).
In order to determine when an infected employee can return to a physical worksite, here are the new protocols mandated by the Commonwealth of Virginia:
For known or suspected cases with symptoms:
- Symptom-based test (CDC preferred): Three days (72 hours) since no fever without medication and improved respiratory symptoms, and at least 10 days have passed since symptoms began
- Test-based test: Resolution of fever without medication and improvement of respiratory symptoms AND negative test results from TWO tests taken more than 24 hours apart
- OR Consult a medical professional
For known or suspected cases without symptoms:
- Time-based test: At least 10 days since date of first positive test, assuming no symptoms have developed since. If they develop symptoms, use symptom- or test-based strategy.
- The employer must: report any confirmed cases to the VA Dept of Health AND alert other employees who worked at or have visited the same worksite as the affected employee. This needs to happen within 24 hours of you being notified of the known or suspected case. Do not identify the employee by name!
8. I noticed that the ETS includes requirements for employee training and a written plan. What does this mean for me?
Employers with hazards or job tasks classified as “medium” risk exposure with eleven (11) or more employees, or those with hazards or jobs tasks classified as “high,” or “very high” risk exposure, are required to develop and implement a written Infectious Disease and Preparedness Response Plan (the “Plan”). This requirement will come into effect sixty (60) after the effective date of the ETS, on September 25, 2020. Covered employers must designate a person to be responsible for implementing the Plan and the Plan must provide for employee involvement in its development and implementation.
Employers with hazards or job tasks classified as “medium,” “high,” or “very high” exposure risk must provide training to all employees working at the worksite to recognize the hazards of the virus and signs and symptoms of COVID-19 disease as well as train employees on procedures to follow to minimize these hazards. This requirement will come into effect thirty (30) days after the effective date of the ETS, on August 26, 2020, and is required for all employees at the worksite regardless of that employee’s specific risk classification.
The training should include the ETS requirements, CDC mandatory and non-mandatory recommendations, work practices to minimize the risks and hazards associated with COVID-19, PPE use and limitations, the anti-discrimination provisions of the ETS, and the employer’s Plan where applicable. Training regarding the employer’s plan must be implemented by September 25, 2020, sixty (60) after the effective date of the ETS. Employers must additionally verify compliance with this standard by having employees exposed to “medium,” “high,” or “very high” exposure risk hazards or job tasks sign a written certification that identifies the employee trained, the details of the training, and the name of the person(s) who prepared the training materials and conducted the training.
9. What paid leaves are as mandated by the FFCRA and who is eligible for them?
The two paid leaves mandated by the FFCRA are Emergency Paid Sick Leave and Emergency FMLA (EFMLA). Below, we’ve listed eligibility requirements for both:
FFCRA – Emergency Paid Sick Leave
Eligibility
All employees are eligible for emergency paid sick leave.
Reason for Leave
You may take emergency paid sick leave if you are unable to work (or work from home) because:
- You are subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- You have been told to self-quarantine because you have COVID-19, may have COVID-19, or are particularly vulnerable to COVID-19;
- You are experiencing symptoms of COVID-19 and are seeking a medical diagnosis;
- You are caring for an individual who has been ordered or advised to quarantine by a government agency or health care provider;
- You are caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 precautions; or
- You are experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Duration
Full-time employees are eligible for 80 hours of leave.
Part-time employees are eligible for the number of hours they work, on average, over a two-week period.
Compensation
Leave will be paid at an employee’s regular rate of pay, subject to a limit of $511 per day and $5,110 in total, when leave is taken for reasons 1, 2, or 3.
Leave will be paid at 2/3 of an employee’s regular rate of pay, subject to a limit of $200 per day and $2,000 in total. where leave is taken for reasons 4, 5, or 6.
Leave Rules
You may elect to use emergency paid sick leave before using any other accrued paid leave.
Leave provided by the Company prior to April 1, 2020 will not count against your FFCRA leave.
Emergency paid sick leave cannot be carried over after December 31, 2020.
Requesting Leave
If you need to take emergency paid sick leave, provide notice as soon as possible. Normal call-in procedures apply to all absences from work.
Retaliation
The Company will not retaliate against employees who request or take leave in accordance with this policy.
Potential Exemption
The Company, as a small business with fewer than 50 employees, may need to deny otherwise qualifying leave for qualifying reason #5 only under this policy if granting such leave would jeopardize the viability of the Company’s business as an ongoing concern. The Company is exempt from the requirement of providing EPSL for qualifying reason #5 when:
Such leave would cause the Company’s expenses and financial obligations to exceed available business revenue and cause the Company to cease operating at a minimal capacity;
The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the Company because of their specialized skills, knowledge of the business, or responsibilities; or
The Company cannot find enough other workers who are able, willing, and qualified and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor and services are needed for the small employer to operate at minimum capacity.
Expiration
This policy expires on December 31, 2020.
Documentation
The employee should fill out the EPSL form provided by HR or along with this policy.
FFCRA – Emergency FMLA (EFMLA)
The Company provides eligible employees with up to 12 weeks of an emergency family and medical leave for a qualifying need related to a public health emergency.
Eligibility
Emergency family and medical leave is available to all employees that have been employed by the Company for at least 30 calendar days.
Reason for Leave
Leave under this policy is limited to circumstances where you are unable to work (including at home) due to your need to care for your child (either under the age of 18 or over the age of 18 but incapable of self-care because of a mental or physical disability) because the child’s school or place of childcare has been closed or is unavailable due to a public health emergency.
Requesting Leave
If you need to take emergency family and medical leave, provide notice as soon as possible. Normal call-in procedures apply to all absences from work.
Compensation
The first 10 days (two weeks) of leave are unpaid, but you may substitute accrued paid leave, including emergency paid sick leave.
The remaining portion of your leave (up to 10 weeks) is paid at 2/3 of your regular rate for the number of hours you would otherwise be scheduled to work (with a maximum payment of $200 per day and $10,000 total).
Restoration
Upon returning to work at the end of the leave, the Company will make its best effort to return you to your original or an equivalent position. However, if your position has been eliminated due to the impacts of the pandemic and no equivalent position exists, restoration is not guaranteed. You will not lose any unused benefits that accrued before leave was taken.
Retaliation
The Company will not retaliate against employees who request or take leave in accordance with this policy.
Potential Exemption
The Company, as a small business with fewer than 50 employees, may need to deny otherwise qualifying leave under this policy if granting such leave would jeopardize the viability of the Company’s business as an ongoing concern. The Company is exempt from the requirement of providing expanded family and medical leave when:
Such leave would cause the Company’s expenses and financial obligations to exceed available business revenue and cause the Company to cease operating at a minimal capacity;
The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the Company because of their specialized skills, knowledge of the business, or responsibilities; or
The Company cannot find enough other workers who are able, willing, and qualified and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor and services are needed for the small employer to operate at minimum capacity.
Expiration
This policy expires on December 31, 2020.
Documentation
The employee should fill out the EFMLA form provided by HR or along with this policy.