Virginia Eases Workplace COVID-19 Safety Standards; Absence Of Mask Not Reason For Firing

VIRGINIA — The Virginia Safety and Health Codes Board of the Virginia Department of Labor and Industry voted Monday to revoke Virginia’s standards on the prevention of COVID-19 spread in the workplace.

The vote to repeal the workplace standards came after the board found at a February meeting that the disease no longer meets the legal standard of posing a “grave danger” to workers. The finding at the Feb. 16 meeting was partly based on low serious illness and hospitalization rates among infected people in Virginia.

The repeal takes effect Wednesday, March 23 and will be replaced with guidance to employers on how to prevent the spread of COVID-19 and how employees can be treated.

The guidance says the Virginia Occupational Safety and Health “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” in most circumstances.

Virginia Gov. Glenn Youngkin praised the decision by the Safety and Health Codes Board.

“Businesses asked us for updated workplace guidance to reflect our current COVID-19 situation in Virginia," Youngkin said in a statement Tuesday. "We are pleased with the board's move and this vote signals that a return to normalcy in Virginia is not a partisan issue."

The governor said his administration will continue to provide greater certainty and decision-making power to businesses and workers "as we move beyond the pandemic."

On his first day in office, Youngkin issued an executive order titled "Reinvigorating Job Growth By Removing Burdensome Regulations From Virginia's Business Community."

The “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19,” as implemented by the Safety and Health Codes Board, "is not having a measurable impact on preventing the spread of COVID-19 while presenting a significant burden on businesses," Youngkin's executive order said.

Tammie Wondong, SEIU Virginia 512 Fairfax County president and a Fairfax County government employee for more than 30 years, expressed disappointment with the board's decision to repeal the safety standards.

"Essential workers kept all of us healthy and safe throughout the pandemic, and it was Virginia's COVID safety standards that kept essential workers like me and my co-workers healthy and safe," Wondong said in a statement Tuesday.

"Now, partisan Richmond politicians have repealed these common-sense, life-saving standards, which is completely unacceptable," the union leader said. "That's why workers across our community — whether they're Fairfax County employees, Starbucks workers, or janitors at George Mason — are demanding union rights as the only way to keep ourselves healthy and safe."

In July 2020, the Safety and Health Codes Board approved an emergency temporary standard for COVID-19. Virginia became the first state to issue such a temporary standard. In January 2021, the Safety and Health Codes Board enacted the permanent standard for COVID-19.

Among the mandatory requirements for employers under the standards were to conduct an assessment of the workplace for hazards and job tasks that could potentially expose employees to COVID-19 and prohibit employees known or suspected to be infected with COVID-19 from reporting to or remaining at work until cleared for return.

Under the standards, employers also were required to ensure that employees observed social distancing while on the job and wore face masks when contact may occur, such as passing in the hallway.

At Monday's meeting, Jay Withrow, legal support director for the Department of Labor and Industry, noted that the initial version of the omicron variant remains the dominant strain of COVID-19 in the United States. But he added that there is now the BA.2 variant that is spreading across the country and will likely replace BA.1 as the dominant strain.

Withrow also cited Centers for Disease Control and Prevention data on infection rates that shows Virginia ranking seventh on the list of states with the lowest estimated COVID-19 infection rate.

In its recommended actions, the Department of Labor and Industry found that there is no longer a continued need for the COVID-19 standards in the workplace "based on scientific and medical evidence that the current widespread variants of the virus no longer constitute a grave danger to employees in the workplace."

Members of the Safety and Health Codes Board then voted to accept the recommended actions.

As part of the decision to revoke the permanent standard for prevention of COVID-19 in the workplace, the Department of Labor and Industry provided a guidance document to employers. The document recommends vaccination as the most effective form of protection against COVID-19 and its spread and suggests making masks available to employees.