COVID-19 and the Virginia Workplace

Understanding Your Rights as an Employee While Working with COVID-19

Many Americans throughout Virginia are beginning to return to work as COVID-19-related restrictions on businesses are lifted. Almost all sectors are still subject to modified operating protocols that are designed to protect both employees and consumers. Reducing the spread of COVID-19 is essential to keeping your community safe, and your employer is obligated to follow local and state guidelines to limit the odds of disease transmission.

Returning to work during the COVID-19 crisis can be inherently stressful, even when appropriate precautions are taken. You may be thankful to have a job at all, especially as unemployment levels hit record, distressing highs. However, you still have rights that you should exercise when encountering problems in your Virginia workplace. Many of these conflicts may be specific to COVID-19, including scenarios where your boss refuses to comply with mandatory safety guidelines.

Our employment lawyers at LawrenceQueen are prepared to assist Virginia employees struggling to navigate new conflicts stemming from COVID-19 rules and scenarios. Our team has over 85 years of combined legal experience and understands how to effectively and efficiently pursue cases against employers who refuse to honor the rights of their employees. We are on your side and care about your safety.

If you are struggling with a COVID-19-related conflict in your workplace, do not hesitate to call (804) 409-8689 or contact us online.

Virginia State COVID-19 Guidelines

State guidelines involving business operations remain fluid as the pandemic and our understanding of transmission evolves. Many are issued by executive order and can change relatively quickly. Currently, Virginia is in “Phase 3” of its reopening process, which allows some business sectors to open with modified operations.

Virginia has issued mandatory guidelines specific to numerous types of businesses permitted to reopen, include bars & restaurants, brick & mortar retail, fitness & exercise facilities, entertainment centers, pools, salons, and religious facilities, among others. Updated requirements specific to your workplace type can be found on the state’s coronavirus website.

Many workplace guidelines are universal across all sectors, including:

• Allow telework, or “working from home,” wherever possible. Staying home is the best way to avoid the risk of COVID-19 transmission. Some jobs simply cannot be completed at home, however, and will require presence in a physical workplace. Other positions, such as those involving deskwork, can often be completed at home. Employers are obligated to permit and accommodating working from home wherever possible.
• Implement appropriate physical distancing policies and protocols for physical workplaces. Six feet of distance should be maintained between individuals who are not of the same household. Ten feet of distance should be maintained in facilities where physical exercise, cheering, or singing occurs.
• Maintain “clear communication and signage” to encourage physical distancing. Your employer must make an effort to enforce appropriate distancing through posted reminders and physical indicators on surfaces throughout the workplace, especially in high-traffic areas where individuals might congregate, such as entrances and check-out queues. Distancing should be maintained and enforced for both customers and employees, including in back-of-house areas.
• Limit facility capacity to accommodate physical distancing needs. In a non-pandemic scenario, every building has an occupancy limit mandated by the fire marshal. COVID-19 requires facilities to admit a far smaller number of people into a building or space in order to facilitate appropriate distancing. Appropriate occupancy levels vary by industry but should be clearly communicated and enforced.
• When telework is not possible, ensure workstations are appropriately distanced. Whether you work in an office or in a supermarket, your workstation should still maintain recommended distancing requirements. This might entail your employer temporarily reorganizing your workplace or closing certain workstations.
• Limit or eliminate in-person employee meetings. Meetings should be held remotely whenever possible. Should an in-person meeting be absolutely required, keep the meeting as brief as possible, follow distancing protocols, and minimize the number of employees in attendance.
• Establish and enforce frequent, enhanced sanitation protocols. High-contact surfaces like countertops, doorknobs, light switches, desks, phones, and employee terminals should be disinfected at once per day. High-contact items in public, customer-facing spaces, like shopping carts, should be disinfected after each use.
• Promote and enforce frequent handwashing. Employees are already required to wash hands before returning to work in many business sectors, but signage should now encourage all customers and visitors to wash their hands at regular intervals. In situations where water and soap cannot be readily provided, hand sanitizer should be provided instead.
• Conduct employee screenings prior to start of the workday. To avoid transmission among employees, employers are encouraged to take temperatures and ask health and symptom-related questions before admitting workers to the facility. Employees with a fever or those who are exhibiting COVID-19-like symptoms should be sent home without penalization.
• Encourage employees not to come to work if sick. Signage should be posted in the workforce reminding employees not to come to work if they are experiencing any COVID-19-related symptoms. Some employers are obligated to extend sick pay under the Families First Coronavirus Response Act (discussed below) to employees quarantining as a result of COVID-19 symptoms or exposure. Employers should also openly communicate with employees about other flexible sick pay options.
• Appoint a COVID-19 safety officer. The state recommends employers designate a specific employee to monitor concerns related to COVID-19 protocols. Other employees should know who this individual is and how to contact them.
• Limit congregations through signage and staggered schedules. Many workplaces have common areas where employees regularly gather on breaks or during meals. Employers should post signage reminding employees to maintain appropriate distancing in break spaces and consider staggering break times to avoid unnecessary or unintentional congregations.
• Enforce facial coverings for indoor spaces. Facial coverings or masks that tightly cover the mask and nose are now required in public indoor spaces in Virginia. Some rules involving facial coverings vary by industry.
• Accommodate those who are at higher risk of complications from COVID-19. Individuals with underlying medical conditions and those above the age of 65 are especially vulnerable to the risk of developing a severe, life-threatening illness as a result of COVID-19 infection. The state requires that employers take special care to accommodate these individuals in manners consistent with both the American with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA). Adjusting their job responsibilities to limit their interaction with persons outside their household or allowing telework is encouraged to accomplish this.

These are only the most basic of COVID-19 protocols for businesses operating in Virginia. Individual sectors and industries have even more specific regulations that you should make time to review.

Families First Coronavirus Response Act (FFCRA)

The FFCRA is a piece of federal legislated enacted early in the pandemic that protects employees that need to isolate as a result of COVID-19 exposure. The law is currently in effect through December 31, 2020 but could be extended.

Under the FFCRA, your qualifying employer must extend you two weeks (or 80 hours) of paid sick leave at your regular rate of pay if you:

• Have tested positive for COVID-19
• Have been alerted to exposure to COVID-19 and are consequently self-isolating and seeking a diagnosis
• Are experiencing COVID-19-like symptoms and are seeking a diagnosis
• Your qualifying employer must extend you two weeks (or 80 hours) of paid sick leave at two-thirds of your regular rate of pay if you:
• Must care for an individual quarantining as a result of COVID-19
• Must care for a minor child whose school or childcare provider has shut down as a result of COVID-19

It is important to understand that not all employers are necessarily covered under FFCRA rules. Employers with fewer than 500 employees are automatically subject to these guidelines. Some public employers are covered, while employees of the federal government operate under different rules. Small businesses with fewer than 50 employees are permitted to apply for exceptions to the closed school or childcare provider requirement if the absence of the employee would imperil operations.

It is also worth keeping in mind that if an employee can ably perform their job duties from home, the employer does not necessarily have to honor FFCRA sick leave. An employee that can “work from home” will generally not be entitled to sick leave if they are only self-isolating as a precaution.

The goal of the FFCRA is to both provide relief to parents of minor children and other employees who become sick or exposed as well as prevent further transmission in the workplace. Many employees cannot afford to miss two weeks of work to self-isolate, leading to scenarios where they come into work even if they should be quarantining. Unfortunately, some unscrupulous employers are refusing to honor the sick leave guaranteed to impacted employees under the FFCRA. We can help navigate these concerns and get you the pay to which you are entitled.

Whistleblower Retaliation for Raising COVID-19 Concerns

Employers are required to comply with local and state regulations involving COVID-19 preventative measures. As an employee working during a pandemic, you are entitled to a safe workplace free of avoidable risk. The Virginia Department of Health (VDH) offers an online system to report many common COVID-19 workplace safety violations, including facial covering compliance and reduced building occupancy. Complaints submitted will be forwarded to the appropriate local health department, which will investigate the violations alleged.

You can also raise concerns about enforcing safety guidelines directly with your boss or manager. If possible, raise these concerns.

Your employer cannot fire, demote, reduce your hours, or chronically give you unfavorable work assignments as a result of your raising concerns about a legitimate COVID-19 safety violation. This is true even if you bypass any internal means of reporting issues (such as a COVID-19 safety officer) and instead submit a complaint directly to local or state health officials. Any punitive action taken against you due to your attempt to address workplace safety is considered an act of retaliation, which is unlawful.

If you wish to pursue a lawsuit against your employer for a retaliatory act, you must do so within 2 years of the incident in the state of Virginia. Our attorneys are familiar with litigating these types of cases and can help fight for your interests.

We Are Ready To Protect You

The reality is that working anywhere other than your home opens you to additional risk to COVID-19 transmission. It is on your employer to follow local and state guidelines and provide a workspace that is as safe as feasibly possible. It can be easy to feel like you cannot push back against lax enforcement or flagrant violations, especially if you are concerned about employment security. However, it is important to exercise and defend your rights, especially when it involves your physical safety.

Our team at LawrenceQueen can help you navigate emerging COVID-19 issues in your Virginia workplace. Our lawyers have assisted workers across all industries and are well-versed in the current and changing pandemic regulations for various business sectors.

If you are struggling to receive sick pay guaranteed under the FFCRA or have been retaliated against for reporting a problem, we are prepared to do whatever it takes to get you the justice you deserve. Call (804) 409-8689 or contact us online to schedule your initial consultation.