With the development and adoption of the Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus that causes COVID-19 regulations, Virginia clearly demonstrated their commitment to employee health and safety. This temporary standard motivated many organizations to take initial or additional steps to protect employees. This temporary standard also modified some established aspects of current health and safety regulations such as, reporting requirements, redefining what could be considered a potential workplace exposure, and the employers responsibility in determining work relatedness of incidents.
Now the question is whether to move this standard from being a temporary standard to a permanent standard. In some aspects, having programs or procedures in place to protect employees from the potential impact of viruses are beneficial. There are many studies that show the financial impact to organizations from the common cold and flu viruses that can spread through a workforce. Having measures that employers can implement to try and better control these potentials will only benefit everyone involved.
However, having a permanent standard that addresses one specific virus or that modifies established health and safety standards may not be the best approach. First, a permanent standard does not allow for the flexibility to adjust to new research or procedures that may be determined to be more applicable. As an example, the temporary standard has guidelines for an employee to return to work after a COVID illness. As time progresses we can assume that research and treatment options may change the medically acceptable steps for this to occur. Will the standard be flexible enough to allow employers to keep up with the research? Even during the life of this temporary standard VDH has provided new and updated guidance and will a permanent standard allow practices, procedures, and programs to be modified to keep up with these recommendations from another state agency?
Second, exposure potential for this virus is not limited to the workplace. In fact, in many instances the exposure potential is greater outside the work environment and employers are being held somewhat responsible for this potential. We have groups of employees that socialize together outside the work environment attending birthday parties, taking family vacations together, family outings together, attending weddings and funerals. If a group of employees become infected due to this contact outside the work place employers are required to notify VDH and VOSH. Why are employers held responsible for these non-work related exposure potentials? Traditionally it has been the employers responsibility to determine work relatedness for exposures and incidents but that has now been removed for this virus. Further, with medical providers notifying VDH of positive COVID tests why is this being repeated with the employer responsible for reporting as well, especially if there is evidence that it was a non-work related exposure?
Third, there are letters of interruption indicating that exposure and getting the flu is not typically considered a work related exposure, even in the medical field. This temporary standard changes this for COVID. Are we ready to make this level of change in health and safety regulations in a permanent standard? Why not address the flu as well?
I am not against some standard or practice that allows an employer to take steps to protect employees from all viruses. Some of the measures in this temporary standard will to some degree help keep the flu and common cold out of the workplace. But no matter if an organization complies with every health and safety regulation, every VDH guidance document, unless they operate a clean-room facility, this virus, any virus, can find its way into a facility. Is it the best practice to hold employers accountable from a financial standpoint, being fined, for having a virus in the workplace that cannot be fully controlled?
Would it not be better to use the General Duty clause or Administrative Manual to allow employers to follow the guidance or recommendations of the research and health care industry to protect employees? A process that allows for this level of flexibility in programs and practices would make it easier for employers to adjust as we learn more about this virus. My organization has taken steps to comply with this temporary standard, we have increased employee training, increased cleaning and disinfecting, invested in equipment, have employees working remotely, prescreen employees, mandated PPE usage and with all these steps the virus can still impact our employees. Is a permanent standard really the best option at this time? Is the concern for being fined really the best approach at this time in the history of this virus?