On July 15, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board adopted an Emergency Temporary Standard on Infectious Disease Prevention: SARS-CoV-2 That Causes COVID-19 (§16 VAC 25‐220) (“Standard”) to prevent the spread of the coronavirus in Virginia workplaces. The Standard went into effect on July 27, 2020 and is set to expire within six (6) months of the effective date, upon expiration of the governor’s state of emergency, or when superseded by a permanent standard, whichever occurs first.

Virginia employers must ensure that they develop and implement policies and procedures in compliance with the requirements of the new Standard and complete the training requirements mandated by such. Certain training requirements under the Standard take effect on August 26, 2020, while others take effect on September 25, 2020.  The regulations impose monetary penalties for non-compliance with the Standard.

Some of the general requirements for all employers include:

• Assessment of Job Risk Levels:Must (1) assess the workplace for hazards and job tasks that potentially expose employees to the COVID-19 virus; (2) classify each job task (or a group of similar tasks) according to the hazards employees are potentially exposed to and designated as “very high,” “high,” “medium,” or “lower” exposure risk; and (3) once the risk level is determined, must ensure compliance with the applicable section of the Standard for such risk level.
• Employee Reporting and Assessment: Must establish a system for employees (including contractors, subcontractors, and temporary employees) to report positive test if they were present at the place of employment within the previous 14 days from the date of positive test.
• Notification Requirement within 24-hours of discovery:Must notify employees, reasonably believed to have been exposed, that a co-worker has tested positive for COVID-19 within 24 hours of discovery; the infected co-worker’s identity and name must be kept confidential in accordance with the Americans with Disabilities Act (ADA) and other applicable federal and Virginia laws and regulations. Must provide notice of same to other agencies as outlined in Standard.
• Return to Work Policies:Must develop and implement policies and procedures for known or suspected COVID-19 employees, as well as known asymptomatic employees, to return to work, per either a test-based method, or time-based method as outlined in the Standard.
• Focus on Adequate Sanitation and Disinfecting: Employers must develop methods for cleaning and disinfecting areas accessed by known or suspected to be infected employees, as well as all common spaces and high touch surfaces.
• Enforcement of Physical Distancing:Must establish and implement policies and procedures that ensure that employees observe physical distancing while working and during paid breaks.
• Personal Protective Equipment (PPE): Employers must provide Personal Protective Equipment (PPE) to employees, including respiratory protection, as applicable to the employees’ work industry and mandate its proper use per VOSH laws.
• Anti-Discrimination: Employers must not discharge or discriminate against employees who raise a reasonable concern about infection control; exercise their rights under safety and health provisions of the Standard; or voluntarily provide and wear their own PPE if such equipment is not provided by the employer, provided that such PPE does not create a greater hazard to the employee or serious hazard to others.

In addition to the above, the Standard mandates certain additional requirements specific to places of employment, or job tasks, designated as “very high,” “high,” “medium,” or “lower” exposure risk. We are closely monitoring this matter and are available to answer any questions or assist you in implementing the specific requirements of the Standard as applicable to your business. 

For more information and assistance with drafting your plan please call us at 703-766-8081.

The following questions often arise as companies consider whether and how to implement a corporate drug and alcohol test policy:

1. How should my company handle random testing? Each company should design its random testing to suit its needs; i.e. balance costs and work interruption against the need to monitor and enforce the policy.  The company must decide how often it will test, and how it will select employees for testing. As an example, the company may test all covered employees twice a year at specified intervals. The company could send two employees each week for testing, but any given employee would only be sent twice in a year.  If the company elects to place all covered employees in a random testing pool, it must ensure random selection.  This process should be documented and recorded.
2. What if an employee refuses to sign the policy? The company must first have in place a policy that requires employees to sign a consent and acknowledgment form.  The company may then terminate an employee for refusing to sign an acknowledgment of the policy, provided that the employee has been warned in writing witnessed by others that discharge can result from refusal to sign.  An alternative to such a hard-line approach would be to hold a mandatory staff meeting, publish an agenda for the meeting showing as one of the items “distribution of new drug-testing policy”, have all employees sign an attendance roster or else face discipline for an unexcused absence, discuss and distribute the policy in front of witnesses, have employees sign the consent form, have a witness sign “employee refused to sign” on the consent form if an employee refuses to sign, and note in the minutes of the meeting that the policy was distributed to everyone in attendance.  This seems laborious, but following this example an employee would look unreasonable trying to claim that they were not given a copy of the policy or that they were unaware of what the policy required.
   
   
3. Are the test results confidential? Yes.  Drug and alcohol test results are confidential.  The results from such tests are considered medical records and should be kept in a separate, confidential medical file just as other types of medical records.  The company should not disclose any test results without the employee’s written consent. The company may release test results as a result of legal process, for example if ordered by a court of appropriate jurisdiction, but even under those circumstances it must notify the employee in writing. The company should maintain accurate records regarding all testing procedures and test results in confidential form.
   
   
4. Can my company test some, but not all, employees? Technically yes, but avoid this practice.  It can be legal to test some, but not all, employees.  The policy should cover all employees, and can be broken down into more specific job categories. For example, a company could make all workers who operate machinery or vehicles subject to drug testing, but not require testing of clerical staff.  Some employers test only those employees whose jobs are inherently risky.  The critical element is to decide who will be covered, and then to enforce the policy in an even-handed way.
   
   
5. May my company conduct searches on its premises? The company’s office equipment, desks, filing cabinets, computers, etc., is company property (and should be noted as such in your written privacy policy), and your company has the right to access and search its property.  Employees generally have no reasonable expectation of privacy as to company property. The company should include a statement notifying employees that it can and may search its own property for any reason or no reason in its employee manual if it has not already done so. The company should refrain from searching personal belongings such as purses, backpacks, etc. The company may not search an employee’s car, even if it is parked on company property.
   
   
6. What type of testing should be done? Initial tests or screens vary, and typically involve urine screens.   But in order to have the best chance of protecting the company against an unemployment claim, the company should request the testing facility confirm the initial positive result using the GC/MS method (gas chromatography/mass spectrometry). The GC/MS test is more expensive than the initial screen, but the company should be sure about the test results before making adverse employment decisions based on those results.

More Questions? Contact us, we can help you design and implement a drug and alcohol test policy designed to fit your company's needs.