Labor Law: COVID workplace regulations rescinded and replaced with flexible guidance for employers | Local Business News

Irina Baranova

Virginia’s Safety and Health Codes Board repealed the permanent COVID-19 standards effective March 23 that, along with the previous temporary ones, impacted Virginia workplaces since July 2020.

On his first day in office, Gov. Glenn Youngkin recognized the undue burden the standards placed on business and issued an executive order instructing the board to immediately evaluate the continued necessity of the regulatory standard.

The Virginia Department of Labor and Industry announced that the standard is being replaced by a much more flexible five-page guidance for employers. The guidance explains that the decline in COVID infections and the increase in vaccinations and natural immunity can lead Virginia to a “path to normalcy.”

The guidance is designed to “help employers provide appropriate information for workers to mitigate the risk of COVID-19 transmission in the workplace and to help establish a workplace framework for future organizational and individual expectations and responsibilities.”

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While the guidance encourages and touts the benefits of vaccinations, including boosters, it sets no mandates.

For those with natural immunity, the guidance explains, “Immunity is conferred either after contracting an infection from the COVID-19 virus or from a COVID-19 vaccine. The Commonwealth of Virginia and the Department of Labor and Industry recognize that natural immunity, after recovery from COVID-19 infection, likely provides significant protection against COVID-19 for some time. COVID-19 ‘immunity’ does not mean that a person will not contract the COVID-19 virus in the future — rather, a person with ‘immunity’ may not get seriously symptomatic or hospitalized with COVID-19.”

The guidance encourages “support and respect” for those who choose to wear a mask in the workplace and those who choose not to. The exception is for any workplace that is governed by federally mandated workplaces where masks are required such as airlines and health care settings.

The guidance warns that employees and customers should have a choice on mask wearing without negative consequences. It warns, “The Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.”

Employers must still comply with “general duty clause” of the OSH Act and the Virginia Code. To encourage compliance with creating a safe and healthy work environment, the guidance recommends that employers:

  • facilitate employees getting vaccinated and boosted;
  • encourage any workers with COVID symptoms to stay home from work and seek advice on testing and treatment from their physician;
  • require all workers infected with COVID 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 your COVID policies and procedures using accessible formats and in languages they understand;
  • operate and maintain ventilation systems in accordance to manufacturer’s specifications to achieve optimal performance; and
  • record and report COVID infections and deaths, which is mandatory under VOSH regulations part 1904.

Employers are still expected to follow other applicable mandatory VOSH standards.

Employers in Virginia should be lauded for their successful efforts to keep employees and customers safe during the pandemic. They can now feel comfortable relaxing mitigation measures and bringing normalcy to the workplace unless things change with a new variant, and employers should remain vigilant to stay abreast of updated guidance from state and federal officials.

As it stands today, there are no mask or vaccine mandates on Virginia workplaces other than those limited ones that are federally mandated.

Karen Michael is an attorney and president of Richmond-based KarenMichael PLC and author of “Stay Hired.” She can be reached at [email protected]

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