To Mask or Not to Mask: Virginia DOLI Board Votes to Repeal COVID Permanent Standard


To Mask or Not to Mask: Virginia DOLI Board Votes to Repeal COVID Permanent Standard

Mar 22, 2022 | Uncategorized

On March 21, 2022, the Virginia Department of Labor and Industry (DOLI), Safety and Health Codes Board (Board) voted to revoke the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (the “Permanent Standard”).

The Board’s revocation of the Permanent Standard was the subject of a thirty-day written comment period that ended on March 19, 2022. The Board held a public hearing on March 14, 2022, to provide the opportunity for public comment prior to the final vote to revoke the standard. The revocation will be effective upon publication in the Richmond Times-Dispatch, which is currently scheduled for March 23, 2022.  

The DOLI’s guidance document on COVID-19, entitled: Guidance for Employers to Mitigate the Risk of COVID-19 to Workers  (Guidance) will be published in the Virginia Register on March 28, 2022 for a 30-day comment period, in accordance with Va. Code § 2.2-4002.1.B. The public comment period on the Guidance will end on April 27, 2022. 

Of particular note for Virginia employers in the Guidance is the DOLI’s “support and respect [for] the rights of individuals to choose whether to wear masks or to not wear masks in non-federally mandated environments, unless required by law or as medically appropriate in cases of acute illness or in certain healthcare environments,” The DOLI offered this support in conjunction with a warning that it will “not allow or condone illegal discrimination based on wearing or not wearing masks, . . .” adding that “people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.    

The proposed Guidance reiterates that all mandatory VOSH standards protecting workers against infection remain in place and that Virginia employers are responsible under the OSH Act’s General Duty Clause for “providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.” The Guidance encourages employers to mitigate COVID-19 transmission in the workplace, with the following:

  • Facilitate employees getting vaccinated and boosted
  • Encourage any workers with COVID-19 symptoms to stay home from work and seek advice on testing and treatment from their physician
  • Require all workers infected with COVID-19 virus to stay home
  • Provide workers with face coverings or surgical masks, as appropriate
  • Encourage good sanitary work habits such as frequent handwashing
  • Educate workers on your COVID-19 policies and procedures, using accessible formats and easily understandable language
  • Operate and maintain ventilation systems in accordance with manufacturers’ specifications
  • Record and report COVID-19 infections and deaths which are mandatory under VOSH regulations

This blog will be updated with the details of any changes to the DOLI proposed Guidance. 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 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.


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