{"id":5962,"date":"2022-04-05T14:19:45","date_gmt":"2022-04-05T18:19:45","guid":{"rendered":"https:\/\/oshadefensereport.com\/?p=5962"},"modified":"2026-03-20T13:18:31","modified_gmt":"2026-03-20T17:18:31","slug":"vosh-rescinds-its-covid-rule-but-introduces-new-guidance","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/osha-defense-report\/vosh-rescinds-its-covid-rule-but-introduces-new-guidance\/","title":{"rendered":"Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance"},"content":{"rendered":"

By Conn Maciel Carey’s COVID-19 Task Force<\/a><\/strong><\/em><\/p>\n

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020.\u00a0 Through all the fits and starts with federal OSHA\u2019s COVID-19 rulemaking, VOSH\u2019s COVID-19 regulation was a consistent presence through most of the pandemic. \u00a0Indeed, that ETS was made \u201cpermanent\u201d in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.<\/p>\n

\"Capture<\/a>However, on his first day in office \u2013 January 15, 2022 \u2013 new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor\u2019s office to conclude it was not).\u00a0 Not surprisingly, under that political pressure, and in the wake of the Supreme Court\u2019s harsh decision about federal OSHA\u2019s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”)\u00a0that \u201cbased on emerging scientific and medical evidence,<\/em> [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.\u201d<\/em><\/p>\n

That Board finding started a 30-day clock for public notice and comment about the Board\u2019s intention to repeal the rule, and as expected, the Board\u00a0voted on March 21st<\/sup> to rescind the ETS (effective March 23rd<\/sup>, 2022).<\/p>\n

So where does that leave Virginia employers?\u00a0 Essentially in the same boat as employers in federal OSHA states \u2013 not subject to specific COVID-19 related requirements and prohibitions, but still potentially subject to enforcement under VOSH\u2019s General Duty Clause if VOSH determines that the employer is not taking reasonable, recognized actions to address the spread of COVID-19 in the workplace.\u00a0 And also like employers in federal OSHA states, that means evaluating the employer\u2019s policies and actions against CDC and OSHA guidance.<\/p>\n

Consistent with that, DOLI officially published its new draft COVID-19 Guidance in the Virginia Register on March 28, 2022. \u00a0That publication started a 30-day comment period that will close on April 27, 2022. \u00a0In the meantime, employers in Virginia should look to the New Guidance, which is generally consistent with current federal guidance from the CDC and HHS.\u00a0 Specifically, in place of rescinded ETS, Virginia’s new COVID-19 workplace guidance asks employers to:<\/p>\n