Virginia DOLI Mandates Masks Regardless of Vaccination Status

On September 8, 2021, the Virginia Department of Labor and Industry (“DOLI”) published new Virginia Occupational Safety and Health Administration Standards mandating, among other things, that Virginia employers require unvaccinated employees working indoors to wear face coverings. The new Standards also mandate face coverings for vaccinated individuals working indoors in areas of substantial or high COVID-19 transmission. The Centers for Disease Control (“CDC”) has designated all of Virginia as an area of high transmission, as of September 29, 2021. Section 40.1-49.4 of the Code of Virginia provides for penalties of $12,471 per violation and up to $124,709 for willful violations. The DOLI Standards permit exceptions, including by providing for employers to follow CDC guidance in good faith.

The DOLI’s September 8 pronouncement follows prior DOLI mandates, including Temporary Standards issued in 2020 and Final Standards issued in early 2021, both of which created significant confusion because of a conflict with CDC guidance. The DOLI’s previous Standards permitted employers to comply with CDC guidance in lieu of the DOLI Standards, but only if CDC guidance offered “equivalent or greater protection” than the Standards. On its face, the “equivalent or greater protection” clause appeared straightforward, but in practice, it proved unworkable. Because the CDC updates its guidance regularly and the DOLI takes months to effect revisions to its Standards, uncertainty prevailed regarding whether the Virginia DOLI Standards still applied after the CDC began loosening restrictions.

The DOLI update on September 8 eliminated the “equivalent or greater protection” language, but introduced new elements, including new mask mandates and exceptions. Specifically, the DOLI’s compulsory-mask standard does not apply if an individual is in a room by himself or herself; if religious or medical reasons exist; if an individual is wearing appropriate respiratory protection; if it is necessary to see an individual’s mouth (such as when communicating with an individual who is hearing-impaired); or if a mask poses serious danger to an individual. In addition, because the updated DOLI Standards permit good faith compliance with CDC guidance as a means of complying with the DOLI Standards, and because the CDC currently recommends face coverings indoors even for fully vaccinated individuals, the DOLI may interpret its Standards to require face coverings indoors for the fully vaccinated.

The updated Standards also included other mandates for Virginia employers:

  • Establish a procedure for employees to submit anonymous complaints regarding violations of the updated Standards;
  • Have employees known or suspected to have COVD-19 removed from the workplace;
  • Establish quarantine and isolation standards in compliance with CDC guidance for employee return-to-work procedures;
  • Establish a notification procedure for employees who test positive at their place of employment;
  • Restrict multi-employee vehicle work-related travel;
  • Require employees who are not fully vaccinated to socially distance; and
  • Control access to common areas.

The Standards also prohibit employers from discriminating against employees who exercise their rights under the Standards. In addition, the Standards include provisions relating to higher risk workplaces and health care services/health care support services in Virginia. 

Employers should review the updated Standards and seek guidance as necessary.

Brendan F. Cassidy is an attorney at Praemia Law, PLLC.  This article is for general informational purposes only and should not be relied upon or regarded as legal advice. Please contact Brendan Cassidy at  brendan.cassidy@praemialaw.com or 703-399-3603 concerning particular facts and circumstances.