The Virginia Safety and Health Codes Board voted on Monday to revoke Virginia’s permanent standard on the prevention of COVID-19 spread in the workplace, the culmination of one of Gov. Glenn Youngkin’s first-day executive orders. The decision comes as cases of a new subvariant, Omicron BA.2, are on the rise in Europe.
Virginia was the first state in the country to implement emergency COVID-19 standards but will now defer to federal rule-makers and existing state workplace safety rules. Board members found in a February meeting that the disease no longer meets the legal standard of posing a “grave danger” to workers.
That finding was partially based on Omicron’s low serious illness and hospitalization rates among infected people compared to the deadlier Delta variant. Daily hospital admissions for COVID-19, however, were higher during the Omicron surge than any previous wave.
Jay Withrow, legal support director for the state Department of Labor and Industry, walked through a document detailing recent and historic data and research on COVID-19 spread and prevention methods.
He noted that cases are rising in countries where the BA.2 variant of omicron is dominant and acknowledged the same would likely happen here.
“Just wanted to make sure that the board was aware of the possibility that we could be going through another surge at some point,” Whitlow said.
Still, DOLI’s recommendation was for the board to revoke the standards. Following the decision, Commissioner Gary Pan said, “we are on the path to normalcy here in Virginia and throughout the United States.”
As part of the decision, DOLI will provide a guidance document to employers, which is in no way binding. The document recommends vaccination as the most effective form of protection against COVID-19 and its spread and suggests making masks available to employees.
There are still workplace COVID requirements, however - federal OSHA standards on healthcare environments still apply. Virginia also has existing PPE requirements and an OSHA-backed General Duty rule that requires employers to protect their workers against known threats to health and safety.
The federal general rule has been used to hold employers accountable for failing to provide a working environment safe from COVID-19 spread.
State law still allows employers to adopt rules more stringent than the state’s.
Most of the public comments received by the board supported revoking the standard. Many of those comments argued the state’s regulatory system has been unpredictable and confusing throughout the pandemic, saying Virginia standards often conflicted with federal ones. Other commenters took issue with masking and vaccinations in general - DOLI provided research showing the efficacy of such measures to both the commenters and the board.
Staff responded to many comments on the efficacy of masks, reasserting that N95 and KN95 masks are effective, dependable tools in mitigating viral spread. They cited one study from early in the pandemic of a U.S. Naval ship in Thailand, which reported a 70% decrease in infection among service members choosing to mask compared to those who did not.
Some groups and individuals, such as the Virginia AFL-CIO, opposed the decision. In a public comment, the labor union claimed Virginia’s standards saved the lives of many workers and cited the spreading BA.2 variant as a reason to be cautious.
Macaulay Porter, a spokesperson for Youngkin, repeated the assertion that Virginia is on its way to normalcy.
“Now, companies and employees can make decisions best for their circumstances, and Virginia will be open for business,” Porter said.
The standards will officially be stricken on Wednesday, March 23 - two days after the decision was made.
