Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Virginia Could Kill Its First-in-U.S. Workplace Covid-19 Measure

Feb. 1, 2022, 10:30 AM

Virginia officials may rescind the state’s first-in-the-nation standard for protecting workers from Covid-19 infections.

The possible withdrawal of the rule has been called for by Republican Gov. Glenn Youngkin, who, immediately upon taking office on Jan. 15, set out to reverse measures approved by the prior Democratic administration. Virginia is one of 21 states federally approved to enact protections for workers at private employers and state and local governments.

Youngkin’s issuance of a first-day executive order downgrading a public school mask-wearing mandate to merely an option drew instant opposition and then a seven school system state court lawsuit. On that same first day, Youngkin ordered the state panel that oversees the writing of state occupational safety and health rules to review the workplace measure as well.

Three days earlier, Virginia’s seven-day average for new cases reached a record high with 18,782 new infections, according to Centers for Disease Control and Prevention data.

As of Jan. 28, the most recent day data is available for, the state’s daily average was 10,071 cases. The average number of daily deaths from Covid-19 as of Jan. 28 was 39, up from the Jan. 15 average of 20, CDC data shows. The daily fatality average peaked on March 2, 2021, at 217.

If the state’s Occupational Safety and Health Administration measure is repealed, many Virginia employers would no longer have to require those who work indoors to mask up, even in areas of substantial or high community transmission, or to social distance, provide employee training, improve ventilation systems to filter out the coronavirus, or tell the Virginia Department of Health of outbreaks.

The regulator, however, could continue to cite employers by enforcing other rules such as federal OSHA mandates for use of respirators or providing a workplace free of known fatal hazards that can be mitigated.

Virginia was at the vanguard of extending state Covid-19 worker protections. After it enacted its standard, a few other states with Democratic governors approved similar measures or issued executive orders, including California, Michigan, Nevada, Oregon, and Washington.

Yes and No

Reactions to the contemplated repeal have been mixed.

Hobey Bauhan, president of the Virginia Poultry Federation, said that when the emergency standard was initially proposed in 2020, members believed the rule wasn’t needed because they were following CDC guidance.

“We really still feel that way,” Bauhan said.

Manuel Gago, a senior organizer with the Virginia Legal Aid Justice Center, said having a standard that specifically laid out what infection control plans include, as well as employees’ right to report illnesses and later return to their jobs, is an important signal to workers that the state will back up their health concerns.

“We hope they choose to keep the standard. Millions of workers in Virginia have benefited from this standard,” Gago said.

Bloomberg Law reached out to other employer and worker organizations including the Virginia AFL-CIO, the Virginia Manufacturers Association, and the state’s Chamber of Commerce. None replied to requests to discuss the standard.

Decision Upcoming

The Virginia panel that oversees the writing of state occupational safety and health rules is set to meet Feb. 7 to consider if the rule should be withdrawn. The Safety and Health Codes Board’s 14 members have 30 days to make a recommendation to Youngkin. All but two members were appointed by Democratic governors and five seats each are set aside for labor or employer representatives.

The Codes Board issued the rule in July 2020. The standard was revised in August 2021 to allow employers in many situations to follow CDC guidance in lieu of the state regulation.

During board hearings at that time, many members envisioned that the standard could be rescinded when Covid-19 was no longer an emergency.

Since the standard became enforceable, Virginia OSHA has found violations at about 50 employers. Businesses cited include car dealerships, department stores, and social service agencies, according to enforcement records.

Hospitals and nursing homes were less affected by the standard because they were expected to comply with federal OSHA’s temporary emergency standard rule specifically for medical providers. The national workplace safety regulator withdrew the health-care rule Dec. 27 and said on Jan. 21 it would issue a permanent rule in six to nine months.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com
Melissa B. Robinson at mrobinson@bloomberglaw.com