Those statewide rules adopted to purportedly prevent the spread of COVID-19 in Virginia’s workplaces is headed for a repeal.
The Virginia Safety and Health Codes Board voted recently to end the COVID-19 permanent standards for employers that have been in place for much of the pandemic following an executive order issued by Gov. Glenn Youngkin on his first day in office that required the board to reconsider the rules within 30 days.
Citizens now have 30 days to comment on the board’s decision before it takes final action on March 19.
In the executive order, Younkin recognized that the current standard, as written, “is not having a measurable impact on preventing the spread of COVID-19 while presenting a significant burden on businesses. Overly burdensome and time-consuming training requirements for employees inhibit the hiring of new workers. Conflicting state and federal regulations cause confusion. Unnecessary restrictions impede daily activities.”
If approved, the board will ask Youngkin to remove the rule, and the governor is expected to accept the recommendation and remove the standard.
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The Safety and Health Codes Board had adopted the temporary COVID-19 prevention standards in July 2020, becoming the first state in the nation to do so. The rules, which later became permanent, required businesses to put in place multiple safety policies such as mask-wearing and sanitation.
Youngkin’s executive order also directed state agencies to focus resources on enforcement activities that have the most impact with the least burden on citizens. In practical terms, the governor does not want Virginia’s Department of Labor and Industry writing citations because the server at a local establishment isn’t wearing a mask.
“Revoking the standard will provide a significant benefit for Virginia employers and employees,” said Courtney Malveaux, a principal in the Richmond office of the Jackson Lewis law firm who served on the Safety and Health Codes Board until he rotated off in August.
“Through most of the pandemic, they have had to devote significant attention and resources to following a 32-page standard requiring Power Points, written plans and often outdated requirements,” said Malveaux, who also was Virginia’s Labor Commissioner.
“Hopefully, Virginia will soon join other states in focusing our efforts on following CDC guidance,” he said. “The U.S. Supreme Court confirmed what employers have been saying all along. For most workplaces, COVID-19 isn’t really so much a workplace hazard as it is a public health issue. Treating it that way is the best approach. After 19 months, it’s good to see that the Safety and Health Codes Board is beginning to see it that way.”
The board has received over 600 comments, with virtually all suggesting the removal of the standard.
Citizens can comment here: townhall.virginia.gov/ L/comments.cfm? GeneralNoticeid=2373.
Until March 19, employers are technically required to comply with the standard, although it appears that enforcement will be unlikely during this time.
Assuming the standard is removed, employers should continue to do what is best for their own workplace by providing a health standards to make sure that employees can safely return to the workplace.
Department of Labor and Industry still will engage in enforcement of workplace safety pursuant to other standards and its general duty clause.
Karen Michael is an attorney and president of Richmond-based KarenMichael PLC and author of “Stay Hired.” She can be reached at [email protected]