Back in July 2020, Virginia became one of the first states in the U.S. to implement comprehensive emergency temporary COVID-19 workplace safety regulations. Then, on September 8, 2021, the Virginia Department of Labor and Industry’s (“DOLI”) Safety and Health Codes Board (the “Board”) approved a permanent set of regulations governing workplace safety standards and disease prevention relating to COVID-19 (the “Permanent Standard”), which became effective upon approval by then-Governor Ralph Northam. Mandatory use of cloth facemasks at work during times of significant or high rates COVID-19 community transmission was one of the COVID-19 safety hallmarks under the Permanent Standard.
On January 21, 2022, Glenn Youngkin was sworn in as Virginia’s new governor and had a busy first day in office, signing a total of nine Executive Orders and two Executive Directives. With Executive Order 6, Governor Youngkin ordered the Board to “convene an emergency meeting to discuss whether there is a continued need for the Permanent Standard . . .” and to report its findings to him “within 30 days.”
Smart money has it that a recission or significant rollback of Virginia’s COVID-19 workplace safety regulations is likely in the not-too-distant future. Executive Order 6 was one of three executive actions by Youngkin premised on the idea that individuals, not the government, should have the fundamental right to make decisions about what safety precautions to take, such as when to wear protective face coverings to mitigate the risks of COVID-19 transmission and infections.
But unless or until that happens, what are the current COVID-19 workplace facemask requirements for Virginia employees? Under the Permanent Standard, all Virginia employees, even those who are fully vaccinated against COVID-19, must wear a “face covering,” “facemask,” or “surgical mask” (e.g., anything from a closely fitting double-layer of material to an FDA-approved surgical mask) that covers both nose and mouth at all times, while in any public area of the employee’s workplace. The mask mandate is in effect if the employer’s facility is located in an area of Virginia that is experiencing a high or substantial COVID community transmission rate (Unvaccinated workers must continue to wear facemasks even when the COVID community transmission rate drops to moderate or low.) COVID-19 transmission rates are currently high everywhere across Virginia due to the omicron variant. Facemask use is not mandated when an employee: (1) is alone in a room; (2) is eating or drinking, but only if social distancing is maintained or there is a physical barrier between employees, or (3) has been granted an exemption to vaccination for medical reasons under the ADA or for a sincerely held religious belief under Title VII.
To add another layer of complexity to the issue, the Virginia DOLI alternatively allows employers to be deemed in full compliance with the Permanent Standard, if the employer “actually complies” with current Centers for Disease Control and Prevention (“CDC”) guidelines — whether mandatory or non-mandatory — to mitigate COVID-19 risks “related to hazards or job tasks addressed by [the Permanent Standard].”
However, the current CDC guidance for COVID-19 facemask use was issued for the general public and is not workplace-specific (CDC workplace facemask guidelines were archived last year and are no longer considered current.) The CDC’s recommendation for the general public is for all people older than two years of age, to “wear the most protective mask you can in all indoor public places, one that fits snugly over your nose and under your chin, and one that you will wear consistently,” with masks meeting NIOSH safety standards (N95 masks), or international protocols (KN95 masks), offering the greatest protection. Enhanced respiratory protection is recommended for all individuals who are: (1) Not fully vaccinated; (2) Fully vaccinated and in an area with substantial or high transmission; or (3) Fully vaccinated and with weakened immune systems.
So, what does this all mean for Virginia employers? Absent changes prompted by Executive Order 6, adherence to Virginia state regulations means that employers must, at a minimum, continue to require close fitting, cloth facemasks in any public area of your workplace, unless an employee is alone in a room, eating or drinking (if social distancing or physical separation is maintained between employees), or has been granted an exemption to vaccination for medical reasons under the ADA or for a sincerely held religious belief under Title VII. Unvaccinated employees will need to continue to mask up, even when the COVID-19 transmission rates drop to moderate or low levels. With these same caveats in mind, following federal CDC guidelines will mean that Virginia employers must require all workers to wear masks, meeting or exceeding the higher NIOSH N95 respiratory standard, or the KN95 international protocols, if COVID-19 community transmission rates remain high or substantial in the Commonwealth.
This blog will be updated with the details of any changes to the Virginia COVID-19 Permanent Standard or additional facemask guidance from the CDC. In the interim, if you need assistance with these or other COVID-19-related issues or questions for your business, please contact Doug Taylor at (703) 525-4000 or firstname.lastname@example.org or your current Bean, Kinney & Korman attorney.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.