Ever since the U.S. Centers for Disease Control and Prevention announced unexpectedly that vaccinated Americans no longer needed to wear a mask in most settings, employers have questioned how those changes apply to their workplaces and workers.
In Virginia, it is a little more complicated because a permanent standard issued earlier this year by the state’s Health and Safety Codes Board has not been rescinded.
That means those workplace safety rules still apply to most Virginia employees. The standards set requirements for companies related to COVID-19 include cleaning, environmental changes, training, mask wearing, testing, isolation, return to work and reporting requirements.
Businesses in Virginia permitting their employees to work without masks while in close contact with others will be violating the standards.
The governor has yet to address the conflict between the standards and his recent executive action to make mask mandates consistent with CDC guidelines.
While the governor approved the standards, he now has no direct control to rescind them. This is because the standards, which do not even mention the vaccine, cannot expire automatically.
In order to remove or revise them, the Safety and Health Codes Board can within 14 days of the expiration of the governor’s COVID-19 state of emergency call for or conduct a meeting to determine if there is a continued need for the regulations.
The governor has not rescinded his executive order issued last year extending the state of emergency, which is a prerequisite to the board meeting to amend or remove the standards.
Courtney Malveaux, a principal in the Richmond office of the Jackson Lewis law firm who also sits on the state’s Safety and Health Codes Board, said he voted against the standards for this very reason.
He said that the science was rapidly changing and the vaccinations had already started when the board adopted the workplace safety standards in January. The Safety and Health Codes Board has 14 members appointed by the governor.
“The board intentionally dodged the issue of different rules between vaccinated and unvaccinated individuals, even though the vaccine was becoming available,” he said.
The state now has a standard based on the science of January in May. “From the beginning, VOSH [Virginia Occupational Safety and Health] should have embraced the science and should have required employers to follow the CDC guidance in real time. It still has an opportunity to do so now,” Malveaux said.
He recalled that an earlier draft of the standards contained a safe harbor provision providing that if the employer was complying with the CDC that the employer was in compliance with the standards.
Fellow regulatory advocates on the codes board voted to remove this safe harbor provision for employers, and instead replace it with language requiring employers to comply with CDC guidance only if it is stricter than the Virginia standard.
The standard, Malveaux said, is more restrictive than anything now proposed by the governor, the CDC or federal Occupational Safety and Health Administration.
“Until all this is sorted out, most Virginia employers are required to continue to follow the standard, even if it is at odds with the CDC and the governor’s executive orders, and this includes mask wearing in a variety of employment settings,” he said.
The Virginia Department of Labor and Industry issued updated frequently asked questions on May 19 acknowledging that the standard “is silent on the issue of vaccines in the workplace.”
Malveaux said there are no plans to change the standard, but the FAQs state that fully vaccinated employees in nonhealth care settings may stop having to wear face coverings, which directly contradicts the existing standards.
The agency also added other guidance to its FAQs, but did not amend or rescind the standard.
The FAQs can be found at https://www.doli.virginia.gov/final-covid-19-standard-frequently-asked-questions/
Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at firstname.lastname@example.org.