Despite the stunning and rapid success of the vaccines in arresting the spread of COVID-19, if you enter a Virginia workplace you go back in time to the pre-vaccine era of doubt and fear.
Virginia acted in haste in adopting permanent workplace rules related to COVID 19. Now that the Centers for Disease Control has relaxed many of its requirements and conceded that others were not backed up by evidence, the state’s employers are in limbo. The workplace regulations are now badly out of step.
There was no allowance for vaccinations in the regulations, which became permanent in January just as the population was starting to get shots.
Governor Ralph Northam was warned this would happen if the temporary COVID-19 rules were made permanent but barreled ahead to the applause of organized labor. The regulations carry the weight of law and can be enforced with severe sanctions, whether or not they are in direct conflict with the latest CDC guidance.
Outside of workplaces, Governor Northam has used an executive order to relax masking, social distancing and capacity rules effective May 28, but the underlying state of emergency remains in effect until at least June 30. At that point it could be extended. The workplace regulations cannot yet be changed.
In a joint letter, about 35 business organizations have asked the Governor to immediately lift the state of emergency that underlies the workplace regulations, and then quickly call back the state Safety and Health Codes Board which adopted the permanent regulation on a split vote. Only that board can amend the rules to reflect the current CDC advice and the success of the vaccines or repeal the regulations outright.
The joint letter, which the Thomas Jefferson Institute for Public Policy also signed, reads in part:
Now that Virginia is getting closer to fully re-opening the economy, business owners are faced with a legal predicament on whether to follow the science (CDC guidance and recent executive orders) or the permanent regulations (16 VAC25-220). There are several unanswered questions about how business owners should still operate since the COVID-19 regulations passed by the Safety and Health Codes Board are permanent. Will all of 16VAC25-220 be in place after the May 28th? Will they be in effect on or after the end of the State of Emergency on June 30, 2021?
…As the three critical pieces of the Permanent Standard – 1) social distancing, 2) wearing face protection and 3) increasing sanitation measures are expected to be removed on May 28th, there will no longer be a need for the Permanent Standard. The numerous conflicts between the changing CDC guidance, Executive Orders, and Permanent Standard are causing confusion and stress on Virginia’s employers and employees as they rebuild their businesses, as well as causing time allocation and costs on the agencies that are responsible for enforcement of the regulations.
Even before the recent collapse of the masking and other rules outside of the workplace, conflicts between the regulations, previous CDC guidance and simple common sense had sparked a massive effort by the state to respond to questions. Several answers in the “Frequently Asked Question” list seem to relax or downplay the regulations, but an FAQ written by a state bureaucrat does not override a regulation and release the employer from regulatory risk.
One FAQ answer cited by the business coalition letter seems to put a burden on an employer facing a complaint to demonstrate that employees have been vaccinated.
Our members would appreciate clarification regarding what qualifies to fulfill the “an employer can demonstrate” standard? Does an employer need to require a copy of an employee’s vaccination card? Is a written record of an employee’s status needed? Would requiring and maintaining this information place employers in violation of HIPPA rules, require small employers to institute specific security measures to protect an employee’s privacy and ensure other employees do not have access to a fellow employee’s medical history?
Lawyer and Richmond Times-Dispatch labor law columnist Karen Michaels wrote about the dilemma facing employers May 25. She quoted Richmond lawyer and Safety and Health Code Board member Courtney Malveaux, who voted against making the regulation permanent.
“The board intentionally dodged the issue of different rules between vaccinated and unvaccinated individuals, even though the vaccine was becoming available,” he said.
The state now has a standard based on the science of January in May. “From the beginning, VOSH [Virginia Occupational Safety and Health] should have embraced the science and should have required employers to follow the CDC guidance in real time. It still has an opportunity to do so now,” Malveaux said.
He recalled that an earlier draft of the standards contained a safe harbor provision providing that if the employer was complying with the CDC that the employer was in compliance with the (state) standards.
That safe harbor, which would have greatly reduced the current conflicts and confusion, was stripped out of the draft. Odds are research will continue and best practices will continue to change, and if any part of these regulations remain in force, that safe harbor should be added.