are also directed, to the extent allowed by law, to consider their employees’ own individual risk factors, which can vary wildly and might be unknown to the employer. 10 As the COVID-19 status of the health care provider’s patients fluctuates, so too does the level of risk presented by the job tasks performed at that employer’s workplace. This forces health care providers to plan and spend for the worst, increasing time expenditures on excessive documentation as well as costs incurred by acquiring and implementing various protective measures. The Volatility of the Risk Presented in a Healthcare Setting The risk presented by exposure to COVID-19 to employees working in healthcare settings can vary by the day, hour, and even minute. This is particularly true of our frontline healthcare workers in nursing homes, assisted living facilities, and other settings where they interact with patients, residents, and other population groups that are particularly vulnerable to COVID-19. Further complicating things for providers is that the risk assessments are tied to specific tasks or hazards rather than the employee’s job title, meaning that an employee who performs various roles and responsibilities is likely to encounter varying risks throughout the workday. The “very high” risk classification is limited to hazards or job tasks where the employee engages in aerosol generated procedures, collecting or handling specimens, or performing an autopsy that involves aerosol generating-procedures on a person or body known or suspected to be infected with COVID-19. 11 This highest risk classification is limited to specific circumstances with extreme risk of exposure to COVID-19. “High” exposure risk classification is limited to job tasks and hazards that require high potential for occupational contact within six feet with people infected with, or known or suspected sources of, COVID-19 that do not otherwise classify as “very high” risk. 12 The emergency standards specifically state that this includes “healthcare . . . delivery and support services provided to a patient known or suspected to be infected with [COVID-19]. 13 “Medium” exposure risk hazards or job tasks are those not otherwise classified as “very high” or “high” exposure risk in places of employment that require more than minimal occupational contact inside six feet” with other persons. 14 While these different risk level classifications appear sensible on their face, further analysis shows how they quickly become unworkable in the healthcare provider setting. Consider the following hypothetical scenario to understand how the risk classification could change within minutes in the healthcare setting. Licensed Practical Nurse (“LPN”) Smith shows up to work at the nursing home she is employed at in the morning, just as she does every other day. Her nursing home has no current known or suspected COVID-19 positive cases among its residents. Because Nurse Smith’s job tasks require that she come into occupational contact with other persons within six feet to perform her responsibilities, and there are no known or suspected COVID-19 positive cases at her facility, her job tasks currently fall into the “medium” risk category at the beginning of her shift. 15 However, around lunchtime, nursing home Resident Johnson reports experiencing symptoms consistent with COVID-19 and that resident is accordingly classified as “suspected to be infected with COVID-19.” LPN Smith is then assigned to care for Resident Johnson and any other residents who develop signs and symptoms of COVID-19. Because LPN Smith’s duties now require her to come within six feet occupational contact with a person suspected to be infected with COVID-19, LPN Smith’s job tasks now fall into the “high” risk category. 16 Two hours after being classified as “suspected to be infected with COVID-19,” Resident Johnson flatlines due to an underlying medical condition. LPN Smith is the closest nursing home staff member available and immediately rushes to provide Resident Johnson with Cardiopulmonary Resuscitation (CPR). As soon as LPN Smith begins performing CPR, she is now engaging in a potentially aerosol-generating procedure with a person suspected to be infected with COVID-19. 17 This means that LPN Smith is now encountering a “very high” risk job hazard in the course of her employment. 18 Within just a matter of hours, LPN Smith’s job tasks have transitioned from being comfortably placed in the “medium” risk category, to the “high” risk category, to finally presenting a “very high” risk job hazard. Such risk fluctuation is not limited to this hypothetical scenario and is representative of the day-to-day challenges many healthcare providers face as they continue to operate during this pandemic. As the COVID-19 status and incidence rates of residents and patients of the provider fluctuate, so will the exposure risk level presented by the performance of certain job tasks and hazards present in the healthcare provider’s workplace. www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 23