Executive Summary: In response to Virginia Governor Glenn Youngkin’s Executive Order 6, the Virginia Department of Labor and Industry’s Safety and Health Codes Board (“VSHCB”) voted to rescind Virginia’s permanent COVID-19 workplace safety measures (“Permanent Standard.”) The repeal of the Permanent Standard, effective March 23, 2022, comes as a result of Executive Order 6 “Reinvigorating Job Growth by Removing Burdensome Regulations from Virginia’s Business Community,” signed by Governor Youngkin on his first day in office, which directs the VSHCB to determine whether the Permanent Standard is needed.
Background: In January 2021, the VSHCB approved a measure implementing permanent COVID-19 workplace safety measures. Previously in May 2020, then-Governor Ralph Northam implemented the COVID-19 temporary standard which was set to expire in January 2021. At the time, Virginia became the first state in the U.S. to establish and implement emergency workplace safety standards in response to the COVID-19 pandemic. For more information on Virginia’s COVID-19 workplace safety rules, please see FordHarrison’s January 15, 2021 and July 17, 2020 Legal Alerts “Virginia Implements Permanent Workplace Safety Measures in Response to COVID-19” and “Virginia Becomes First in Nation to Adopt Emergency Workplace Safety Rules in Response to COVID-19.”
In February 2022, the VSHCB accepted the Virginia Department of Labor and Industry’s (“DOLI”) recommendation that COVID-19 no longer posed a “grave danger” to workers, obviating the need for a permanent COVID-19 safety standard. The VSHCB’s repeal of the Permanent Standard comes at a time when many states are rescinding indoor mask and proof of vaccination requirements due to declining COVID-19 infection rates.
Employer Considerations: In place of the Permanent Standard, the DOLI issued written non-binding guidance for employers, “Guidance for Employers to Mitigate the Risk of COVID-19 to Workers.” The Guidance provides general COVID-19 recommendations, including encouraging Virginia citizens to receive a COVID-19 vaccine and recommending employers facilitate vaccination among their employees, provide employees with face masks and other personal protective equipment, and operate and maintain ventilation systems in accordance with manufacturer specifications. The Guidance also clarifies that employers must continue to comply with Virginia Occupational Safety and Health Programs' mandatory safety and health standards that may apply to their specific industries or workplaces. Additionally, the Guidance reiterates that Va. Code 40.1-51.1.A’s General Duty Clause requires employers to provide a safe and healthful workplace free from hazards likely to cause death or serious physical harm.
Thus, while generally permissive, the new Guidance provides a checklist for employers to mitigate the spread of COVID-19 in the workplace. Moreover, it remains to be seen what additional recommendations, if any, follow as new COVID-19 variants emerge.
If you have any questions related to the repeal of Virginia’s COVID-19 Permanent Standard, or any other employment-related issue, please contact the author of this Alert, Max Bernas, an associate in our Atlanta, GA and Washington, DC offices, at kmbernas@fordharrison.com, or the FordHarrison attorney with whom you usually work.