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Virginia Worker Safety Board Agrees to Covid-19 Rule Revocation (1)

March 21, 2022, 3:49 PMUpdated: March 21, 2022, 9:01 PM

Virginia’s first-in-the-nation rule protecting workers from Covid-19 infections could be revoked within the week following a vote Monday by the state’s Safety and Health Codes Board.

The board voted 6-0 that Covid-19 no longer posed a “grave danger” to workers and recommended that Gov. Glenn Youngkin (R) approve withdrawing the standard.

Youngkin is certain to remove the rule as he’d asked the board in January, shortly after his inauguration, to decide if the measure was still needed. After he signs off, the revocation becomes official once a notice is published in the Richmond Times-Dispatch newspaper. It’s expected to take effect March 23.

Virginia, under former Democratic Gov. Ralph Northam, was the first state to approve a Covid-19 worker protection standard, enacting the measure on July 27, 2020. It was revised several times, including with a Sept. 8, 2021, provision that employers would be in compliance if they could prove they were adhering to federal Centers for Disease Control and Prevention guidance.

Business groups have opposed the measure since Northam proposed it in the spring of 2020, contending Virginia Occupational Safety and Health could use existing state and federal regulations to cite employers.

Unions and worker advocates countered that the rule was needed to set specific mandates for employers to follow.

The Virginia Department of Labor and Industry no longer believes the threat of Covid-19 qualifies as a “grave danger” to workers—the high threshold for an emergency standard, said Jay Withrow, director of legal support for Virginia Occupational Safety and Health, who presented the proposed withdrawal to the board.

Withrow, citing public health concerns about new Covid-19 variants being more infectious, said there is “the possibility we would be going through another surge at some point and it could not be too far away.”

The department continues to encourage people to get vaccinated and will enforce state and federal worker safety rules applicable to Covid-19, Withrow said.

Withdrawing the standard doesn’t prevent the board from later deciding to pursue a new Covid-19 regulation, although that would take months to accomplish, he said.

The regulation was primarily focused on employers in industries where on-the-job Covid-19 infections were a particular risk, such as health-care, food processing, and corrections.

Employers were required to determine their workplaces’ risks and take preventative actions such as requiring social distancing, imposing mask mandates, improving ventilation systems, allowing sick workers to stay home without retribution, and notifying local health departments of infection outbreaks.

(Add vote tally, updates with comments from meeting)

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

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