Bulletin & Alert:
COVID-19 Update
Virginia Safety & Health Codes Board - VA COVID-19 Permanent Standard 16VAC-25-220 Update
Updates

  1. The Board held its meeting on June 29, 2021. The meeting recording is available here.
  2. The Board did not repeal 16VAC25-220 (permanent standard).
  3. The Virginia Department of Labor & Industry provided a written statement that fully vaccinated non-healthcare employees can safely resume indoor and outdoor workplace duties without wearing a face covering or physically distancing.
  4. The Board had a tie vote on inserting safe harbor language into the permanent regulation (16VAC25-220) that would have allowed employers to only demonstrate compliance with CDC and OSHA guidance. 
  5. The Board may reconvene in 30 days to consider further modifications to the new permanent regulation, including repeal or safe harbor compliance with CDC/OSHA language.

Background
 
Masks:
The Virginia Department of Labor & Industry (VDOLI) has provided a written statement that 16VAC25-220-10.E provides:
 
  • E. To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer's actions shall be considered in compliance with this standard. An employer's actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with CDC guidelines. (Emphasis added).
 
VDOLI interprets 16VAC25-220-10.E to specifically allow the Department’s Final Permanent Standard (FPS) to account for revised CDC recommendations through the Administrative issuance of Frequently Asked Question (FAQ) documents. As an example, in §40, FAQ 54 regarding CDC guidance changes for fully vaccinated persons, the Department consulted with the Virginia Department of Health (VDH) and concluded the following:
 
  • The Department and VDH agree that based on the CDC’s science-based determination that,….fully vaccinated non-healthcare employees can safely resume indoor and outdoor workplace duties without wearing a face covering or physically distancing, [and] such activities would be in compliance with 16VAC25-220-40.F, -40.G, -40.H, -60.C.10, and -60.C.11. (Emphasis added).