Effective March 23, 2022, the Virginia occupational safety and health standard on COVID-19 (the Standard) has been revoked. The Standard established protocols that Virginia employers were required to follow to control, prevent, and mitigate the spread of COVID-19 in the workplace and was the first such occupational safety and health standard in the United States.
The Standard applied to virtually all private workplaces in the Commonwealth of Virginia. It required employers to undertake hazard assessments of each job task in the workplace, provide training to employees, and prepare an infectious disease and preparedness response plan, among other requirements. Over the course of the pandemic, the Standard was amended to require, among other things, that unvaccinated employees – and all employees in areas of “substantial” or “high” community COVID-19 transmission – wear face coverings in most indoor work settings. Violations could result in fines as high as $130,463 for each “repeat” or “willful” violation.
Now, consistent with an overall trend across the United States toward relaxing COVID-19 restrictions, the Standard is no more. In place of the Standard, the Virginia Department of Labor and Industries (DOLI) is now directing employers to the DOLI’s new nonbinding guidance entitled “Guidance for Employers to Mitigate the Risk of COVID-19 to Workers” (the Guidance). A public comment forum on this guidance will commence on March 28, 2022, and end on April 27, 2022. However, the DOLI has advised that employers can rely upon the draft document in the interim.
The Guidance recommends, among other things, that employers facilitate employee vaccinations (including boosters), encourage employees to stay home when they have COVID-19 symptoms and seek medical advice about testing and treatment, and provide employees with face coverings and surgical masks “as appropriate.” Although the Guidance does not mandate specific safety measures, it reminds employers that under Virginia’s General Duty Clause employers are required to provide a safe workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm.”
Virginia employers should review the new Guidance (including any updates resulting from public comment), as well as safety guidance issued by the Virginia Department of Health. If you have questions about how to revise your workplace health and safety protocols in light of these developments, please contact an author of this post or the Hogan Lovells lawyer with whom you work.
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