On March 21, 2022, the Virginia Safety and Health Codes Board rescinded the commonwealth’s COVID-19 workplace safety regulations, the first regulations of their kind enacted in the United States. In their place, the commonwealth published guidance retaining select COVID-19 safety protocols.
Revocation of the Virginia COVID-19 Regulations
In July 2020, Virginia became the first state in the nation to issue COVID-19 safety regulations for employers. Now, as many states are shedding indoor-mask and proof-of-vaccination requirements, Virginia has rescinded its novel regulations.
The process began on Gov. Glenn Youngkin’s first day in office, Jan. 15, 2022, when he signed Executive Order 6, directing the Virginia Safety and Health Codes Board to convene an emergency meeting to discuss whether a continued need for the regulations existed.
During its Feb. 16, 2022, meeting, the Safety and Health Codes Board adopted a finding proposed by the Virginia Department of Labor and Industry (DOLI) that there was no longer a need for the regulations. DOLI based its recommendation on emerging scientific and medical evidence that the current widespread variants of COVID-19 no longer constituted a grave danger to employees in the workplace. The process continued with opportunities for written comments and a public hearing before the final vote on March 21, 2022.
For most Virginia employers, this means the legal requirements imposed by the Virginia Final Permanent Standard — indoor masking, infectious disease preparedness and response plans, training, reporting, and other requirements — are no longer in effect.
New Guidance for Employers
To replace the regulations, Virginia Occupational Safety and Health (VOSH) issued COVID-19 General Guidance. The COVID-19 General Guidance is much shorter and less restrictive than the now-rescinded regulations, but it reflects some of the same safety protocols. For example, the COVID-19 General Guidance provides that employers must still do the following:
- Facilitate employees getting vaccinated and boosted. (Note that VOSH clarifies that this guidance recommends, but does not mandate, COVID-19 vaccinations or boosters.)
- Encourage any workers with COVID-19 symptoms to stay home from work and seek advice from their physician on testing and treatment.
- Require all workers infected with the COVID-19 virus to stay home.
- Provide workers with face coverings or surgical masks, as appropriate.
- Encourage good sanitary work habits, such as frequent hand washing.
- Educate workers on the company’s COVID-19 policies and procedures, using accessible formats and in languages they understand.
- Operate and maintain ventilation systems in accordance with manufacturers’ specifications to achieve optimal performance.
- Record and report COVID-19 infections and deaths, which remains mandatory under VOSH regulations.
- Follow any other applicable mandatory VOSH standards for some employers, particularly those with employees working in environments with chemical hazards, radiological hazards or mechanical irritants (meaning employees must continue to wear personal protective equipment).
VOSH also reminds all Virginia employers that they are still required, under OSHA’s General Duty Clause, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. In addition, it clarifies that employers must still adhere to any VOSH mandatory safety and health standards that may apply to their specific industries or workplaces.
Mask Policies Under the New Guidance
VOSH encourages employers to permit workers the choice of whether to wear a mask, except as otherwise required by the employer or VOSH. This guidance extends to customers, who also should have the choice of whether to wear a mask. Virginia employers that decide to mandate that employees wear masks should be aware that the guidance says employers may not discriminate against employees based on wearing or not wearing masks in the workplace. The guidance also states that employers should not terminate employees for not wearing a mask in non-federally-mandated environments, unless required by law or as medically appropriate in cases of acute illness or in certain healthcare environments.
Although Virginia rescinded its regulations, employers may still implement existing COVID-19 safety precautions, including masking policies.
Bottom Line
The new guidance does not have the force of law like the regulations did. Nevertheless, the guidance provides a road map for employers to continue keeping workplaces safe, and it offers insight into how VOSH will continue to evaluate COVID-19 as a potential workplace hazard.
Virginia is one of several states changing COVID-19 safety standards for employers. For assistance navigating these laws in Virginia or in other states, please contact the authors or other members of the McGuireWoods COVID-19 Response Team.