The Not So Permanent Standard: Virginia Moves to Withdraw COVID-19 Rule

The first state to implement workplace health and safety standards for COVID-19 is poised to roll back those requirements. Virginia’s Permanent COVID-19 Employee Health and Safety Requirements (the “Permanent Standard”) established requirements for employers to control, prevent, and mitigate the spread of COVID-19.  However, with the Omicron wave receding, Virginia Governor Glenn Youngkin says the Permanent Standard presents “a significant burden on businesses” and should be reconsidered.

Pursuant to Governor Youngkin’s Executive Order issued on January 15, 2022, the Virginia Safety and Health Codes Board (the “Board”) convened on February 16, 2022, to determine whether the Permanent Standard is still necessary.  Adopting the Virginia Department of Labor and Industry’s (“DOLI”) recommendation, the Board agreed that there is no continued need for the Permanent Standard because the virus, “based on emerging scientific and medical evidence, . . . no longer constitute[s] a grave danger to employees in the workplace.”

The Board’s decision opens the door for a 30-day Notice and Comment period on revoking the Permanent Standard.  The Board must then hold a public hearing before a final vote on revocation.

If the Permanent Standard is repealed, which seems likely, employers would no longer have to require masking indoors, enforce social distancing, maintain ventilation systems, report COVID-19 cases to the Virginia Department of Health, or provide COVID-19 training to employees, among other current requirements.  In the meantime, employers should maintain their existing COVID-19 safety measures, as required under the Permanent Standard.

Nonetheless, recently updated Centers for Disease Control (“CDC”) guidance may impact the Permanent Standard to the extent it is not repealed.  On February 25, 2022, the CDC released new guidance to recommend steps to protect against COVID-19 depending on the risk of the virus in the area. The level of risk is measured on statistics such as hospital bed capacity, hospital admissions, and the total number of new COVID-19 cases in an area. The guidance is being considered by Virginia’s DOLI and the Department of Health, which will issue an FAQ addressing how it may impact enforcement of the Permanent Standard.

We will continue to monitor developments and provide an update to this post should the Board revoke the Permanent Standard.

*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.