By Conn Maciel Carey LLP’s COVID-19 Task Force
Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule. Procedurally, the board vote was just the first step. 
Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.
Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to consider whether the standard was still needed. The Rule also contained a sunset provision tied to fed OSHA’s COVID-19 Emergency Standard for the healthcare industry, requiring the Board to decide whether the rule was still needed if OSHA withdrew its COVID-19 healthcare standard. Of course, on December 27, 2021, federal OSHA announced it was no longer enforcing the healthcare standard. Finally, Jay Withrow, VOSH’s career Director of the Division of Legal Support, cited a University of Virginia forecast calculating the rate of new infections in the state by late April to be below the state’s previous low in the summer of 2021 as yet another reason for withdrawing the rule. Moreover, although the Omicron variant is more contagious than previous variants of COVID-19, it is significantly less likely to cause deaths or hospitalizations, per CDC studies. That said, Withrow did not foreclose the opportunity of the Board enacting a new standard, explaining that if the forecasts are wrong, or a new variant of COVID-19 emerges that poses a grave danger, the Board could enact a new emergency standard.
The key take away is VOSH is on the path to joining several other agencies in rescinding COVID-19 rules, but until then, the rule remains in effect and enforceable. However, in the meantime, recall that the VOSH rule allows employers to comply with updated CDC guidance, even when they deviate from the specific terms of the regulation. In light of the CDC’s updated guidance then, employers in Virginia can remain in compliance with the VOSH COVID-19 rule for however much longer it is in effect, and still allow employees to drop masks if they are in counties with Low and Medium community transmission. Indeed, VOSH actually updated its COVID-19 Regulation FAQs on Monday to address this:
“The Department and VDH agree that, with the exceptions noted for employers and employees whose job duties do not include providing medical care/non-medical care to known or suspected COVID-19 persons, an employer’s compliance with the updated CDC guidance on mask wearing issued on February 25, 2022, would be in compliance with 16VAC25-40.G. [the rule’s mandatory mask requirement for all employers]”
We will be sure to provide updates as that withdrawal moves through the process.
Let us know if you have any questions or if we can do anything to help as you adjust your COVID-19 protocols over the next few weeks.