Virginia Safety and Health Codes Board Revokes COVID-19 Regulations for Employers

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The Virginia Safety and Health Codes Board voted Monday to revoke standards regulating how businesses and employers must respond to COVID-19.

After the vote, recently appointed Commissioner of the Department of Labor and Industry (DOLI) Gary Pan said, “At the beginning of this journey here through COVID, there was a lot of uncertainty and we didn’t really know what we were going to be facing, but we now have a lot of experience. And that’s important, and we will be working vigilantly to make sure that we continue to protect our employees and employers in the workplace.”

“We are on the path to normalcy here in Virginia and throughout the United States,” Pan said.

In 2020, the board adopted a COVID-19 emergency standard with precautions like requiring employers to classify each job for exposure risk, develop policies for employees who have been exposed to COVID-19, and enforce social distancing. In 2021, former Governor Ralph Northam approved making the standards permanent.

The same day as the January 2022 inauguration, Governor Glenn Youngkin issued an executive order directing the board and DOLI to hold an emergency meeting and reevaluate the decision in light of new OSHA guidance. That was part of his effort to fulfill a campaign promise to declare Virginia open for business.

In February, the board reported back to Youngkin a finding that COVID-19 no longer posed a “grave danger” to employees and indicated a plan to revoke the permanent standard after the required 30 days of public comment. Monday’s meeting followed through on that report. The revocation is set to take effect on March 23.

In January 2022, Virginia saw a wave of record-high COVID-19 case numbers during the Omicron wave, with the seven-day average peaking on January 13 at 18,782 new cases according to data from the Virginia Department of Health. Since then, case numbers in Virginia have dropped dramatically; hitting a March 22 seven-day average of 850.

Before the board’s vote on Monday, DOLI Director of Legal Support Jay Withrow detailed the development of COVID-19 in Virginia and warned that cases of a new variant called Omicron BA.2 are rising in Europe.

“Europe has been an important sign of what we can expect in the U.S. Rising infections, an increase in variant prevalence, and a slow booster rollout is likely a sign of a surge. Whether it will be another wave or a small bump we don’t know yet,” Withrow said.

He said, “I wanted to provide this information to the board. While we don’t believe there’s any reason to change a recommendation from the department to the board about revoking the standard, this all goes to the issue of the legal definitions of what ‘grave danger’ is, which was the basis of the adoption of the standard.”

Withrow said the board could consider new regulations at any time if there is a future surge, as long as required public comment periods were provided.

DOLI has also published new draft guidance composed mainly of recommendations, with an emphasis on vaccinations. It also includes a warning that individuals have the right to choose whether or not to wear a mask in most cases.

“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,” the guidance states.

On Tuesday, Youngkin praised the board’s decision to revoke the standards.

Businesses asked us for updated workplace guidance to reflect our current COVID-19 situation in Virginia. We are pleased with the board’s move and this vote signals that a return to normalcy in Virginia is not a partisan issue. We’re going to continue providing greater certainty and decision-making power to businesses and workers in the Commonwealth as we move beyond the pandemic. With the removal of these regulations, it is undeniable that Virginia is open for business,” Youngkin said in a press release.

Speaker of the House Todd Gilbert (R-Shenandoah) said in a release, “Yesterday’s vote is a win for Virginia businesses of all sizes. Not only were the Northam rules onerous, they were inflexible. Rather than change as our understanding of the pandemic changed, the rules remained fixed. Uncounted hours and capital have been wasted frantically adhering to these rules that we now know have no impact on COVID transmission. This change was long overdue, and I commend Governor Youngkin for his work to restore common sense to our workplace safety rules.

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Eric Burk is a reporter at The Virginia Star and The Star News Network. Email tips to [email protected].



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