Employment Legal Affairs Update

Written By: Kristina Keech Spitler, Esq.

COVID-19 Legal Update

Businesses continue to have challenges in dealing with the Covid-19 virus’ impact in the workplace, figuring out how to comply with the many changing laws and regulations, and trying to work with people with divergent views of what constitutes the “correct” actions for a business or school to take in response. Here are some recent developments regarding Covid-19 in the workplace:

U.S. Supreme Court

On January 13, 2022, in combined cases, National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al. and Ohio, et al. v. Department of Labor, Occupational Safety and Health Administration, et al., 595 U. S. ____ (2022) 7, the U.S. Supreme Court stayed (pending further judicial review) the emergency temporary standard (“ETS”) issued by the federal Occupational Safety and Health Administration (“OSHA”) which required employers with 100 or more employees to develop, implement, and enforce a mandatory Covid-19 vaccination policy. The Court stated in response to the argument that the risk of contracting Covid-19 qualified as a “work-related danger” within the meaning of the Occupational Safety and Health Act:

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The Court, however, further provided:

“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

On January 13, 2022, the Supreme Court, in a separate decision, allowed the federal Centers for Medicare & Medicaid Services (“CMS”) to require Covid-19 vaccinations for healthcare workers at Medicare-and-Medicaid-certified providers and suppliers.

OSHA

Following the Court’s decision above, OSHA withdrew the ETS.

Now that private-sector employers with 100 or more employees do not have to comply with OSHA’s ETS, they, like smaller employers, still have the challenge to deal with the impact of Covid-19 on their workforce and in their businesses. They still need to comply with state and local regulations and take reasonable precautions to protect their employees in the workplace. Employers (other than Medicare-and-Medicaid-certified providers and suppliers) may decide on their own whether they want to require vaccinations and/or testing as it is neither required nor prohibited.

Virginia’s Permanent Standard for Infectious Disease Prevention – Still in Effect

Virginia was the first state to enact its own emergency standard to deal with Covid-19 in the workplace. The Virginia Safety and Health Coded Board, under the Virginia Department of Labor and Industry (“DOLI”) subsequently amended the regulation making it permanent: 16 VAC 25-220 entitled “VOSH Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19” enacted August 26, 2021, and effective September 8, 2021. It established requirements for employers to control, prevent, and mitigate the spread of the virus to and among employees and employers including having certain policies and procedures, training for employees, required actions by the employer if an employee has Covid or been exposed to Covid, reporting requirements to DOLI and the Virginia Health Department, and certain sanitation, disinfecting, and ventilation procedures. The standard also requires that “Employers shall provide and require employees that are not fully vaccinated, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work requires a respirator or other PPE” with some limited exceptions.

This permanent standard is still in effect as of February 9, 2022. However, this regulation is being re-evaluated at the direction of newly elected Governor Youngkin. This may change the playing field again for businesses. According to the article, Virginia Could Kill Its First-in-U.S. Workplace Covid-19 Measure, by Bruce Rolfsen, in Bloomberg Law, “Since the standard became enforceable, Virginia OSHA has found violations at about 50 employers. Businesses cited include car dealerships, department stores, and social service agencies, according to enforcement records.”

Recent Covid-19 Developments under Governor Youngkin

Governor Youngkin has taken several actions relating to Covid-19 including rescinding and/or changing certain vaccine and masks requirements. In his Executive Directive #2, he rescinded the vaccine mandate for all state employees.

In Governor Youngkin’s Executive Order #2 (“EO #2”), he rescinded former Governor Northam’s Executive Order #79 (2021 dealing with Covid-19), ordered the State Health Commissioner to terminate Order of Public Emergency Order Ten (2021); and provided that parents may elect whether their children wear a mask at school. The question of whether a school board can require students to wear masks at school, parents’ right to determine what is best for their children, and whether the Governor has the authority to make such an order is another highly divisive Covid-19 issue. There are several lawsuits filed against the Governor regarding the student mask issue. On February 4, 2022, an Arlington Circuit Court Judge granted a temporary restraining order against Gov. Youngkin’s EO #2 regarding masks at school in a case brought by seven school districts, including Prince William County. Governor Youngkin’s office indicated that it would appeal. In addition, another lawsuit has been filed in federal court by parents of children with disabilities in Virginia’s public schools challenging Governor Youngkin’s EO #2. As the issue of mandated vaccines may be receding based upon recent developments, it appears that the issue of requiring masks may be the next challenge for businesses and schools (for employees and students).

Given that Virginia’s Permanent Standard noted above requires employers to provide and require employees to wear masks at work in various situations, it will be important to follow what happens in response to the Governor’s Executive Order #6.

In Executive Order #6 (“EO #6”), Governor Youngkin directed:

1. The Safety and Health Codes Board is to convene an emergency meeting of their membership to discuss whether there is a continued need for the “Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19.” The board is directed to consider federal action in regard to the Occupational Safety and Health Administration Emergency Temporary Standard. The Board should report its findings to the Governor within 30 days.
2. The Board and the Department of Labor of Industry is directed to seek guidance from the Office of the Attorney General regarding whether the proper legal and administrative procedures were followed during adoption and promulgation of the Permanent Standards.
3. As a matter of enforcement discretion, all Virginia Agencies of the Commonwealth under my authority are directed to focus their limited resources on enforcement activities that have the most impact with the least burden on our business and citizens.

An emergency meeting of the Safety and Health Codes Board was scheduled for February 7, 2022. However, the meeting has been rescheduled to February 16, 2022. Stay tuned for what may change for businesses as a result of the Virginia Safety and Health Codes Board meeting and report to the Governor regarding Virginia’s Permanent Standard.

Kristina Keech Spitler heads the Employment Law practice at VFN, where she and her team advise businesses and municipalities in managing their most important asset – their employees. If you have additional questions or concerns, contact Kristina Keech Spitler, Esq directly at kspitler@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer