In this article, we’ll focus on the situation in Virginia, which was the first state to create its own COVID-19 workplace safety rules, to give an example of how employers reckoning with fast-developing state and federal rules should think about proceeding. If you have employees in several states with such plans, you’ll need a multilateral analysis. Discuss an appropriate plan with counsel as this situation continues to develop.
The guidance from state and federal actors is confusing. In all the excitement over Virginia’s new FAQs based on CDC guidance, for example, Virginia employers should remember that they are not the formal product of a rule-making process. If state-level actors comparable to Virginia’s DOLI—like Oregon OSHA—address their state-level plans in the same way, there would be similar concerns.
Even though there is some uncertainty around the impact of these FAQs on Virginia’s Final Permanent Standard (FPS), they nonetheless indicate DOLI’s enforcement priorities. Employers should pay attention to the difference between those entities that can issue citations (like Virginia’s DOLI) and those that cannot (like the CDC) to try to predict which way the enforcement winds will blow. Employers must still follow all applicable state-level rules, but some responsible agencies have indicated their focus will be more on masks and vaccinations than, say, cleaning surfaces, which may have been an enforcement priority early in the pandemic.
Many employers are welcoming these developments because vaccinated people who can unmask in their private life according to CDC understandably don’t see why they shouldn’t also be able to unmask at work. One of the new Virginia FAQs seems to allow many covered employers to follow CDC’s mask guidance, with notable exceptions for workers in the healthcare, transportation, and education sectors. Virginia employers relying on this FAQ may allow vaccinated employees to unmask, but it’s not required. And any Virginia employer can choose to require masks for all employees, regardless of their vaccination status.
Perhaps the most notable component of the Virginia FAQs is what appears to be a “safe harbor” where employers can avoid a mask citation from DOLI if an “unvaccinated and unmasked” employee exposes a vaccinated co-worker. Unfortunately, no such “safe harbor” exists if the exposed employee is unvaccinated. DOLI has considerable discretion when issuing or not issuing citations, so this is significant. Before relying on this rule to develop policy, talk with counsel as it is among the most impactful aspects of Virginia DOLI’s FAQs. Remember, you must have clear masking rules in place to use the established “employee misconduct” defense, which essentially allows an employer to defend a citation by showing that an employee, not the employer, was the rule-breaker.
Don’t ignore the interplay of these state-level rules with federal law. Employers have been navigating these regulations in a variety of settings during the pandemic, notably the Americans with Disabilities Act, Title VII, the National Labor Relations Act, and OSHA. Whatever their decision for vaccinated employees and masks, Virginia employers in any sector must still require unvaccinated employees to continue masking for the time being. Finally, employers continue to have the “general duty” to keep their workplaces safe.
If an employer chooses to allow vaccinated employees to unmask because of these new FAQs, leaving unvaccinated employees wearing masks, then the Human Resource manager’s internal alarm should be going off: “Employees are being treated differently!” Even worse, there could be protected reasons that the employee is unvaccinated, like disability (ADA) or religion (Title VII). In other words, there could be a disparate impact.
Decision-makers need to show any “unmasking” policies result from a legitimate, non-discriminatory business reason, not from any discriminatory animus. Every workforce is different, so please contact us for advice specific to your workplace. In the meantime, we have a few general suggestions on how to best administer a partial workforce “unmasking”:
Navigating these new laws, regulations, and recommendations can be overwhelming. Woods Rogers Labor & Employment attorneys are available to offer guidance to employers on these issues. We will be glad to help you assess how these developments apply to your workforce.