Tag: Employee Manual

Virginia Adopts Permanent Standard in Response to COVID-19

Posted on by Brigitte Flores

The Virginia Safety and Health Codes Board recently voted to approve a permanent safety and health standard (“Permanent Standard”) requiring employers to take steps to prevent workers from contracting the Coronavirus (COVID-19).  The Permanent Standard provides updates to the Temporary Emergency Standards that were adopted on July 15, 2020. The Permanent Standard became effective on January 27, 2021 and will remain in place at least until any state of emergency related to COVID-19 is lifted.

The Permanent Standard maintains many controls put in place to protect employees from workplace exposure, such as wearing face coverings, social distancing, hand hygiene procedures, frequent cleaning of high contact surfaces. The Permanent Standard also also maintains the various classifications of job related exposure risks: “very high”, “high”, “medium” or “lower”.  However, some revisions have gone into the various definitions within the standards, and the requirements of the controls.  For example, the Permanent Standard now requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control. The requirements include increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

The Permanent Standard contains several significant changes of which all employers should be aware including, among other things:

  • While “exposure” is still not a strictly defined term- the Permanent Standard makes it clear that “duration and frequency of exposure” considers how long and how often an employee is potentially exposed to COVID-19 disease under both acute and chronic situations.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees at the workplace within a 14-day period.
  • Eliminating the test-based return-to-work requirement and changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day (consistent with CDC guidance).
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.

The Permanent Standard does not address COVID-19 vaccines, or whether employers can require their employees receive a COVID-19 vaccine.

Although the Permanent Standard is similar to the Temporary Standard, employers in Virginia should take the opportunity to review and revise their existing policies and procedures as necessary regarding COVID-19 to ensure compliance with the Permanent Standard.

Virginia employers that fail to comply with the Permanent Standard are subject to fines up to $12,726 for serious violations and $127,254 for willful violations.

Covered employers  have until March 26, 2021 to re-train employees on the Infectious Disease Preparedness and Response Plan required under §16 VAC 25‐220‐70 (for “very high”, “high” and “medium” exposure risk level employees). Covered employers will  still need to train employees on the standard itself under §16 VAC 25‐220‐80.E.

Any employer wanting assistance with reviewing the Permanent Standard and/or revising their Office Policies/Protocols and/or Infectious Disease Preparedness and Response Plans should contact shareholder Wendy Alexander at 703-680-4664 for assistance.

A Virginia Business Owner’s Guide to Drafting an Employee Manual

Posted on by Wendy Alexander

Employee ManualTwo questions frequently asked by our Virginia business clients concern the importance of an employee manual and who should draft it. There is no doubt that if you have more than a few employees, a well-written employee manual can effectively communicate your workplace policies and help you reduce the risk of a lawsuit.

While employment in Virginia is considered at-will, meaning either party can decide to end employment for any reason or no reason, business owners who employ a certain number of employees must be aware of, and comply with, federal and state laws designed to protect against unlawful termination practices. By providing each employee with an employee manual, an employer can be sure its employees know in specific terms what is expected of them. Keeping the manual up to date (and, most importantly, consistently abiding by it) minimizes an employer’s exposure to unlawful termination claims, wage claims, and other employment-related litigation.

No manual is able to cover every policy consideration, and it’s best to make this clear to your employees by saying so in the manual. Along the same lines, it’s important to give yourself flexibility to add to, or subtract from, the manual’s written policies on an as-needed basis. Perhaps just as important as what should be included in the manual is what should not. Here are a few categories of what not to put in your manual:

  • Unconditional Promises. Unless you want to create an employment contract that obligates your employee to work for you for a fixed period of time, thereby taking the employment out of the at-will category and limiting your right to fire the employee for the same period, don’t include language that promises employees a job as long as they are not in violation of the rules, or refers to any employee’s position as “permanent.” Similarly, even referring to new hires as “probationary employees” can get employers in trouble, because the term “probationary” can create an expectation that the employee’s status will change after he or she completes the period. Because a court might interpret these scenarios as contracts of employment, preventing you from firing your employees without good cause, the language in the manual must be chosen carefully.
  • Detailed Disciplinary Practices. While it is not uncommon for employers to want to follow some form of progressive discipline for performance problems or misconduct on the job, employers need to be careful when crafting discipline policies. If an employer adopts an overly descriptive and/or restrictive discipline policy (such as starting with a verbal warning, followed by a written warning, followed by a probationary period or suspension, then termination for subsequent problems), this unnecessarily binds the employer to a much more stringent and time-consuming process. Such a restrictive discipline practice will make it difficult for the employer to deviate from the process without claims of unfair treatment. Don’t obligate yourself to follow a particular disciplinary pattern for every employee in every circumstance. If you do, you may find it difficult to fire an employee for gross misconduct. A good disciplinary policy should keep the employer’s options open. And never promise “due process” or anything similar for disciplinary actions or grievances.
  • Employer-Provided Benefits Policies. Overly detailed policies concerning employer-provided benefits can be troublesome because they tend to become too complex. With all the detailed information contained in group insurance policies and the overlap of state and federal leave laws, employer-provided benefits should be only generally summarized in the manual. Employees should be referred to management or human resources for full plan details. When these policies are too detailed, they run the risk of misstating or omitting important facts, resulting in potential problems for the employer.

While no single article can address all of what should and should not be included in an employee manual, it is important to have a competent employment lawyer perform a thorough review of your employment policies to ensure they meet the legal requirements for your business practice. Because no two companies are alike, and no company is like yours, searching online for a template or borrowing a manual prepared by another company is risky at best. The size and type of business and the ever-changing landscape of state and federal laws make it essential for each business owner to tailor its employee manual to its business operation.

Our firm has helped businesses draft employee manuals from start to finish and provided a thorough review and updating of existing manuals to ensure they meet legal requirements. We recommend periodic (at least annual) reviews to ensure the policies are current and valid. Continuing to use out-of-date policies is just as dangerous as inconsistently applied policies.

To get help with your company’s employee manual, or to ensure it is in compliance with Virginia employment law, please contact Wendy Alexander.