Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Nearly two years after enacting the first-in-the-nation permanent COVID-19 workplace safety and health standard,1 the Virginia Safety and Health Codes Board (the “Board”) has voted to rescind its COVID-19 standard. The revocation is expected to be effective on March 23, 2022.
Following his inauguration in January 2022, Virginia Governor Glenn Youngkin made withdrawal of the COVID-19 standard a priority. Pursuant to Governor Youngkin’s January 15, 2022 executive order, the Board met in February 2022 and accepted the Department of Labor & Industry’s recommendation that COVID-19 no longer posed a “grave danger” to workers and, therefore, the COVID-19 standard was no longer needed to keep workers safe. After a 30-day notice and comment period, the Board voted to rescind the COVID-19 standard on March 21, 2022. The revocation will become effective once Governor Youngkin agrees to the revocation, which is a foregone conclusion, and a notice is published in the Richmond Times-Dispatch newspaper. This is expected to occur on March 23, 2022.
What does this mean for employers?
Despite this significant development, the Virginia Occupational Safety & Health Administration (VOSH) can continue to inspect and cite employers for COVID-19-related safety concerns under existing regulations. These include requirements related to respiratory protection, sanitation, and personal protective equipment. In particular, Virginia employers should familiarize themselves with the General Duty Clause, which allows VOSH to cite employers for failing to provide a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”2
VOSH has also issued Guidance for Employers to Mitigate the Risk of COVID-19 to Workers, which encourages employers to continue taking certain steps to protect employees from the virus. The Guidance is set to take effect once the standard is revoked. These measures include:
- Facilitate employees’ getting vaccinated and boosted;
- Encourage any workers with COVID-19 symptoms to stay home from work and seek advice on testing and treatment from their physician;
- Require all workers infected with 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 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 is mandatory under VOSH regulations; and
- Follow other applicable mandatory VOSH standards.
As COVID-19 subvariant B.A.2 cases continue to rise in Europe, signaling a likely rise in cases in the United States, Virginia employers should remain vigilant in protecting employees from COVID-19 infection.
1 On July 15, 2020, Virginia became the first state in the nation to implement an emergency temporary standard to address the COVID-19 pandemic. On September 8, 2021, Virginia’s COVID-19 emergency regulation became a permanent standard.
2 See Va. Code § 40.1.-51.1.A.