On Wednesday, February 16, 2022, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) convened and voted to recommend revoking the Commonwealth’s COVID-19 permanent workplace safety standard. This action comes after newly-elected Governor Glenn Youngkin issued Executive Order 6 directing the Board to convene an emergency meeting to consider whether there is a continued need for the permanent workplace safety standard.
The Board’s vote begins the process of revoking the permanent standard. The Board will now report its recommendation and findings to the Governor followed by a public comment period. After the comment period, the Board will meet to finalize the action, which will become effective upon publication in a newspaper of general circulation.
In July 2020, Virginia was the first in the nation to implement an emergency COVID-19 workplace safety standard. That standard became permanent in January 2021. Since then, employers and other stakeholders have expressed frustration with the permanent standard as inconsistencies developed between it and the CDC’s often changing COVID-19 guidance. The Board attempted to align the permanent standard with CDC guidance in August 2021, but given the evolving nature of the CDC’s guidance, inconsistencies continued to exist. When making its recommendation, the Board specifically considered the U.S. Supreme Court’s decision in NFIB v. OSHA, 595 U.S. ____ (2022), rejecting federal OSHA’s justification for its vaccine/testing mandate on “grave danger” grounds, given that the Board’s authority to mandate the permanent standard was implemented using a similar “grave danger” justification. The Board specifically noted that based on emerging scientific and medical evidence that the current widespread variants of the COVID-19 virus no longer constitute a “grave danger” to employees in the workplace under Virginia law.
Once the permanent standard is rescinded, the Virginia Occupational Safety and Health Program (VOSH) will still have workplace safety enforcement authority under its General Duty Clause as informed by applicable federal and state public health guidance. Virginia employers should be aware of these forthcoming changes to determine how their operations may be impacted. If you have any questions on these developments, need assistance developing policies and procedures to adjust for such changes, or have other questions regarding your workforce related to COVID-19, please contact Betty Graumlich at email@example.com, Noah Oberlander at firstname.lastname@example.org, or the Reed Smith lawyer with whom you normally work.