Legislative
Bulletin & Alert
16VAC25-220 (COVID-19 Permanent Regulation), Governor Northam Executive Orders 79 & 72, CDC Mask Guidance, and Federal OSHA COVID-19 Emergency Temporary Standard (ETS) Update
Call to Action
The Virginia Business Coalition has called upon Governor Ralph Northam to convene the Virginia Safety & Health Codes Board to repeal 16VAC25-220 (COVID-19 Permanent Regulation). We urge all Guild members to petition Governor Northam and your Delegates and Senators to repeal the regulation. The rationale is explained in this letter.

 
There are several conflicts between Executive Order 79, the 7th version of Executive Order 72, and CDC guidance (e.g., masks for vaccinated people). However, we have conferred with the Virginia Department of Labor & Industry (VDOLI) and determined the following:

  1. Masks & Executive Orders (EO). The Governor’s team believes that EO79 supersedes 16VAC25-220 (our legal counsel says otherwise). Regardless, VDOLI will be enforcing EO79 as it pertains to masks, not the permanent regulation and looking for “good faith” compliance. Therefore, at midnight on May 28, 2021, Virginia businesses will no longer be subject to the restrictions and requirements of the 7th version of Executive Order 72. Businesses will only have to comply with 16VAC25-220 and Executive Order 79 (that only addresses masks). In plain language, except for school settings, if you are fully vaccinated, you do not have to wear a mask and all of EO72 is repealed. If you are not fully vaccinated, you must mask.
  2. Social distancing in the workplace is still required for those that are unvaccinated, including in breakrooms and cafeterias, per 16VAC25-220. Businesses do not have to verify that customers/suppliers on their premise are vaccinated in order to eliminate their mask wearing obligations and social distancing. Requiring employees to disclose vaccination status may have substantial regulatory and civil liberty implications (see background below and VDOLI FAQ #54). As an alternative, it is recommended that the latest CDC signage be posted throughout the premise and employees are simply required to sign a document that they have read the CDC mask guidance document and understand it.

Background
  • According to VOSH, CDC guidance does not provide “equivalent or greater protection” to the VA COVID-19 permanent regulation. VDH and VDOLI will issue case by case decisions on this issue through their FAQ system.
  • Masks. FAQ #54 addresses this issue in part.  Unvaccinated employees still must wear masks in compliance with 16VAC25-220. Vaccinated employees may comply with the latest CDC guidance - https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html – and do not have to wear masks. To avoid being “mask police,” ensuring you have implemented safe work practices in good faith, and avoiding the creation of health records by requiring employees to show their vaccination cards, companies should have employees sign a document that they have read the CDC mask guidance for vaccinated people or similarly stated employer policy. Employers should consider posting the CDC mask infographic prominently and/or using it in employee communications. A company policy based upon CDC guidance may be a good idea. However, beware that requiring an employee to disclose their vaccination status may constitute the creation of a health record and obligate the company to HIPAA, EEOC, ADA, and other regulatory record-keeping obligations.
  • Social Distancing. Unvaccinated employees still must practice social distancing in compliance with 16VAC25-220. Vaccinated employees may comply with the latest CDC guidance - https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.
  • Break Rooms and Cafeterias. Break rooms and on-premise cafeterias must keep socially separated for those employees that are unvaccinated. Vaccinated employees do not have to comply with social distancing in break rooms and cafeterias.
  • FAQs about the final permanent COVID-19 standard have been posted to the DOLI outreach page:
  • NEW §40, FAQs 47, 48, 49, 50, 51, 52, 53, 54 (questions addressing updated CDC guidance on fully vaccinated employees)
  • VDOLI will be issuing FAQ updates this week. 
  • https://www.doli.virginia.gov/final-covid-19-standard-frequently-asked-questions/
 
The VA Safety & Health Codes Board adopted a Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, on January 13, 2021. The effective date of the standard was January 27, 2021. This was driven by an Executive Order of Governor Ralph Northam. See 16VAC25-220.

Federal Update 
Just in time for the end of the pandemic, the US Occupational Safety and Health Administration (OSHA) has a proposed Emergency Temporary Standard (ETS) on COVID-19 under review by the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA). Virginia’s State Plan for Occupational Safety and Health (VOSH) is required to be “at least as effective” as OSHA in accordance with the OSH Act of 1970. This was driven by an Executive Order of President Biden on Protecting Worker Health and Safety. It was motivated by organized labor just like was done in Virginia.

Use this link to track OSHA’s ETS: https://www.reginfo.gov/public/do/eom12866SearchResults?pubId=&rin=1218-AD36&viewRule=true. We will continue to monitor this situation as it may add another layer of complexity to Virginia compliance.