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Virginia moves toward changing its rules on workplace COVID-19 safety

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Workplace Safety

A cleaning service employee wipes down windows at a hair salon in Short Pump. Amid the COVID-19 pandemic, a state board voted in late August 2021 to loosen some of the workplace standards it adopted in January.

Disease Control and Prevention (CDC) continues to regularly update its travel advisories list

Virginia is moving toward loosening its first-in-the-nation COVID-19 workplace safety rules, which were designed to prevent the spread of the virus but also were criticized by many businesses as too unwieldy.

A board that oversees the state’s workplace safety regulations voted last week to change those rules, giving businesses some leeway to avoid fines as long as they follow COVID-19 prevention recommendations from the U.S. Centers for Disease Control and Prevention.

The rules, which initially were adopted in July 2020 and made permanent in January, required businesses to put in place multiple safety policies such as mask-wearing, sanitation of work areas and employee education about COVID-19 prevention.

Various business groups opposed the rules, which they argued imposed an inflexible, “one-size-fits-all” standard on businesses across the state, while some worker advocacy groups and labor unions said the rules helped protect essential workers from the risks of COVID-19 infection.

Technically, the rules remain in place, but under a 10-4 vote by the Virginia’s Safety and Health Codes Board last week, business would be considered compliant with the state rules as long as they are making a “good faith” effort to comply with the CDC’s recommended guidelines for COVID-19 prevention.

The board’s vote to change the rules is now being considered by Gov. Ralph Northam’s office before it is made official, which could happen this month. The rules will be published before they become official.

Northam had previously called for the board to revisit the rules, proposing that businesses in compliance with CDC standards should be considered compliant with the state rules.

Some business organizations such as the Virginia chapter of the National Federation of Independent Business and the Virginia Retail Federation had pushed for a full repeal of the rules.

“We have found that the CDC recommendations is what employers have been following,” said Nicole Riley, Virginia state director of the NFIB. “They are more comfortable with that, and that is what they know. The awareness is much higher on what CDC guidelines are than another state regulation.”

The changes, she said, “will help businesses because if they are following CDC [recommendations], then there is a really good chance that they are compliant with the [state] permanent standard.”

The change to the rules doesn’t necessarily mean that masks are no longer needed to be worn in workplaces, because the CDC has recommended that even fully vaccinated people continue to wear a masks in public indoor settings in areas of substantial or high transmission of the virus.

The board also loosened a requirement that businesses must prepare an infectious disease preparedness and response plan, a rule that applies to all businesses with more than 11 people. By a vote of 11-3, the board said businesses can exclude counting employees who are vaccinated in determining whether they must adhere to that rule.

“I do think this standard is much, much better than the prior iterations, because it follows the science,” said Courtney Malveaux, a principal in the Richmond office of the Jackson Lewis law firm and a former commissioner of Virginia’s Department of Labor and Industry.

“It enables employers to follow the science and not necessarily archaic rules,” said Malveaux, who had been a member of the Safety and Health Codes Board but who rotated off last week.


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