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Virginia's COVID-19 workplace rules could be up for revision or repeal
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Virginia's COVID-19 workplace rules could be up for revision or repeal

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A mask mandate and other statewide rules adopted in January to prevent the spread of COVID-19 in Virginia’s workplaces could be headed for revisions or possibly a repeal.

Gov. Ralph Northam urged the Virginia Safety and Health Codes Board this week to hold a meeting to revisit those rules before June 30, when a state of emergency that Northam declared last year due to the pandemic is set to expire.

The rules, which required businesses to put in place multiple safety policies such as mask-wearing and sanitation, were controversial when they were adopted. Numerous business groups said the rules imposed an inflexible burden on businesses, but the rules were backed by some unions and worker advocacy groups that argued it would save lives.

In a letter to the Virginia Safety and Health Codes Board this week, Northam said the standards have saved lives but that there are now “discrepancies” between the state rules and guidance provided last month by the Centers for Disease Control and Prevention, which says that fully vaccinated people no longer need to wear masks.

“With increasing vaccination rates, the continued decline in case counts, and revised guidance from the Centers for Disease Control and Prevention (CDC), we are finally seeing life return to once-dormant sectors of our economy,” Northam said in the letter to the 14-member board.

The rules mandate masks in workplaces with customer-facing jobs and require businesses to provide hand sanitizer and to sanitize common areas in workplaces regularly. All but low-risk businesses have been required to provide COVID-19 prevention training to employees. Businesses also must notify employees when someone at a work site tests positive.

The Safety and Health Codes Board adopted temporary COVID-19 prevention standards last July, becoming the first state in the nation to do so.

The board adopted a final permanent standard in January. That 60-page document of rules “unfortunately does not evolve with improving conditions across the Commonwealth,” Northam said in the letter.

While Northam did not say the board should repeal all the rules, some business organizations that opposed the adoption of the permanent workplace rules are hoping the board will vote to rescind them.

“I would say that for us and our members, we are hoping this is a good signal that he [Northam] has recognized that the permanent standard is not effective at this point, and it makes sense with the most recent CDC guidance and the increase in vaccinations and fewer cases, that it is time to repeal the permanent standard with expiration of the state of emergency,” said Nicole Riley, Virginia director of the National Federation of Independent Business.

The board is considering several dates later in June for a meeting. At least one member of the board — Courtney Malveaux — said he intends to make a motion at the meeting to repeal the permanent rules.

“Currently we have a permanent standard that was crafted in January” but has not kept up with changing COVID-19 conditions or science, said Malveaux, a principal in the Richmond office of the Jackson Lewis law firm and a former commissioner of Virginia’s Department of Labor and Industry.

“Now the current law requires employers to treat vaccinated and unvaccinated employees the same, which is far out of step from the science,” he said.

The original draft of the regulations had a provision that gave an out for employers to follow the CDC guidance, he said.

“But the board changed the provision to give it the oppositive effect,” Malveaux said. “Now, between CDC and the Virginia standard, employers must follow the provision that provides ‘equal or greater protection.’ On one hand, CDC has lifted mask requirements between vaccinated persons in most circumstances. On the other hand, the Virginia standard requires masks when employees are in close contact, and vaccination status is a non-factor.”

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