Virginia Employment Law Update – March 2022

Employer COVID Guidance: The Path Back to Normalcy

The Virginia Department of Labor and Industry (DOLI), under the new administration of Virginia Governor Glenn Youngkin, is in the process of “returning to normal.” Many Virginia employees have achieved some level of immunity, whether vaccine-induced or due to a prior COVID infection, and so DOLI is set to scale back pandemic-era workplace recommendations and restrictions.

On February 16, 2022, the Virginia Safety and Health Codes Board voted to revoke the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220 (the “Virginia Standard”), which is subject to a thirty day written comment period and public hearing prior to a final vote to revoke the standard. The thirty day period goes until March 19, 2022.

Virginia DOLI published a draft guidance document which gives a window into what Virginia employers might be able to expect for future COVID-19 guidance. That document can be found here, and below is a relevant snapshot. 

Please note that this guidance is a draft and is not yet into effect until the Virginia Standard is revised.

Summary of Virginia DOLI Draft Guidance for Employers:

–Path Forward: Virginia is on the path to normalcy as it relates to COVID-19.

–Employee Immunity: Many employees have COVID-19 immunity (vaccine or infection-induced).

–On Vaccines: 

Disease Mitigation + Encouragement: “The Commonwealth of Virginia and the Department of Labor and Industry believe that fully approved COVID–19 vaccines and boosters mitigate the individual health risk from contracting the COVID-19 virus, and we encourage all people to consider the benefits of vaccines and boosters in reducing the impact of COVID-19.”

Recommends But Does Not Mandate Vaccines: “Because the COVID-19 vaccine and booster reduces the risk of hospitalization and death from the COVID-19 virus, this guidance specifically recommends, but does not mandate, COVID-19 vaccinations and boosters for workers…except as otherwise required by their employer or VOSH pursuant to Va. Code §40.1-51.1.A.”

–Recognition of Natural Immunity: “The Commonwealth of Virginia and the Department of Labor and Industry recognize that natural immunity, after recovery from COVID-19 infection, likely provides significant protection against COVID-19 for some time. COVID-19 ‘immunity’ does not mean that a person will not contract the COVID-19 virus in the future – rather, a person with ‘immunity’ may not get seriously symptomatic or hospitalized with COVID-19.”

–Masks Optional; Employee Protections on Masking Choice; No Terminations Based on Masking: Employers must protect employees’ right to wear or not to wear masks, and employees should not be fired for not wearing a mask unless other legal requirements apply.

–Draft General Guidance for Employers:

“Employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. Employers should engage with workers to mitigate COVID-19 transmission and the impact of contracting the virus, including: 

• 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 hand washing; 
• Educate workers on your COVID-19 policies and procedures using accessible formats and in languages they understand; 
• Operate and maintain ventilation systems in accordance to manufacturers specifications to achieve optimal performance; 
• Record and report COVID-19 infections and deaths which are mandatory under VOSH regulations part 1904; and, 
• Follow other applicable mandatory VOSH standards.”

Lipp Law will continue to update employers on their legal obligations for worker protections. If you need help with employment law guidance for workplaces in DC, Maryland, or Virginia, contact Lipp Law today.