On March 21, 2022, the Virginia Department of Labor and Industry’s Safety and Health Codes Board (DOLI) held a public hearing to vote on whether to revoke the Department’s Permanent COVID-19 Regulation (Standard), which we previously reported on here and here.

The meeting went as expected, and, effective as of March 23, 2022, the Standard and its penalties are no longer in effect. It is unclear what effect, if any, the withdrawal of the Standard will have on any on-going investigations and proposed penalties for prior filed complaints against employers under the Standard.

While the Standard has been withdrawn, DOLI did issue a “Guidance for Employers to Mitigate the Risk of COVID-19 to Workers” (Guidance). The Guidance is attached here. It will be sent out for a 30-day notice and comment period before it becomes final. The Guidance provides the following salient points:

• DOLI continues to believe that all fully approved COVID-19 vaccines and boosters mitigate against the risks of COVID-19 and encourage all citizens of Virginia to consider the benefits of the vaccines and boosters.
• DOLI continues to support the right of all employees to individually determine whether to wear or not wear masks and employers may not discriminate/retaliate against employees for exercising such decisions.
• While not mandating vaccinations, DOLI believes that employers should engage with their employees to mitigate COVID-19 transmissions by taking the following steps:
  • Facilitate employees getting vaccinated and boosted;
  • Encourage symptomatic employees to stay at home from work and seek advice on testing and treatment from their physicians;
  • Requiring all infected workers to stay at home in accordance with CDC guidelines;
  • Where appropriate provide employees with face masks and/or coverings;
  • Encourage good sanitary work habits such as frequent handwashing;
  • Educate workers on the employer’s COVID-19 policies and procedures using accessible formats and in languages that the employees understand;
  • Operate and maintain ventilation systems in accordance with manufacturers specifications;
  • Record and report COVID-19 infections and deaths which are mandatory under VOSH regulations part 1904; and
  • Follow all other applicable VOSH standards that remain in place, including respiratory protection, sanitation, protection from blood borne pathogens, employees’ access to medical and exposure records and the General Duty Clause.