Last month, Governor Northam made news when he announced that the Virginia mask mandate had been lifted for fully vaccinated people, but the devil is in the details. On May 14, 2021, the Governor’s office set forth its updated policy by issuing Executive Order (“EO”) 79 replacing EO 72, effective May 28, 2021. This EO updates mask guidance to align with Center for Disease Control and Protection (“CDC”) guidance, which announced that for fully vaccinated individuals, most COVID-related restrictions no longer apply, including the requirement to wear masks and socially distance.
Accordingly, Virginia businesses that are not subject to federal industry-specific guidance can relax rules for their fully vaccinated employees; those employees no longer need to wear masks or socially distance and, after exposure to COVID, they do not need to self-isolate but may continue to work, as long as they have no COVID symptoms. Additionally, the CDC provides the following guiding principles for fully vaccinated people:
- Indoor and outdoor activities pose minimal risk to fully vaccinated people.
- Fully vaccinated people have a reduced risk of transmitting SARS-CoV-2 to unvaccinated people.
- Fully vaccinated people should still get tested if experiencing COVID-19 symptoms.
- Fully vaccinated people should not visit private or public settings if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms.
The CDC guidance still requires masks for public transportation aboard planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States and in U.S. transportation hubs such as airports and stations. EO 79 does carve out a mask requirement above the CDC guidance for students, teachers, staff, and visitors of public and private K-12 schools.
The new EO 79 comes with its own challenges. Businesses attempting to regulate who may or may not be masked need to be mindful of Americans with Disabilities Act’s (“ADA”) prohibition on discrimination based on disability and requirement to keep employee medical information confidential. It is generally permissible for employers to ask employees about their vaccination status and even to require proof, provided that such information is kept confidential. Businesses should take care to prevent harassment of employees based on their vaccination status.
In addition, until further notice from Virginia’s Governor or Department of Labor and Industry, Virginia’s Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that causes COVID-19, which was adopted on January 13, 2021, remains in effect, to the extent it is not contradicted by EO 79.
Businesses seeking information on how to comply with these ever-changing guidelines should seek the advice of counsel.