The Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board (Board) met on June 29 to discuss the future of the DOLI Full Permanent Standard (FPS) as the adoption of the federal OSHA Emergency Temporary Standard (ETS).VHCA-VCAL submitted comments to the Board earlier this week requesting that the FPS be revoked as it is out of step with changing guidance from federal agencies that oversee long term care.

Following a failed 6-6-2 vote to repeal the FPS in its entirety, the Board voted to adopt several revisions to the FPS, part of which incorporates the OSHA ETS once it becomes effective. The following is a summary of the revisions:

• Adopts the OSHA ETS as it applies to health care providers once it becomes effective. If the ETS is stayed or repealed by OSHA, then the DOLI FPS provisions applying to health care providers becomes effective again.
• Strikes all language in the FPA related to risk levels at place of employment (i.e., lower, medium, high, very high).
• Retains language specifying that employers must comply with CDC guidance or the FPS, whichever is greater. This item is chief among VHCA-VCAL’s concerns.
• Adds a definition of and references to fully vaccinated individuals (i.e., those individuals are no longer required to wear face coverings in certain settings, no longer required to physically distance, etc.)
• Rules for barring from work, testing, and return to work for confirmed COVID-19 positive employees were not updated for vaccinated individuals. This appears to be inconsistent with CDC guidelines; VHCA-VCAL will be analyzing these provisions further.
• Adds a category for “higher-risk workplaces with mixed-vaccination status employees.” This language is unclear as to whom it applies (including but not limited to manufacturing assembly lines, grocery stores, retail, etc.). This category will have to prepare an Infectious Disease Preparedness and Response Plan. How the agency would enforce this provision and determine whether a workplace has mixed-vaccination status is unclear.

Additionally, DOLI officials have signaled that the agency considers the FAQs published on its website to be binding. VHCA-VCAL continues to press for clarification on this point as subregulatory guidance like FAQs do not usually carry the same weight as regulatory or statutory language.

Next Steps

The revisions adopted by the DOLI board on June 29 will be forwarded to Gov. Ralph Northam’s office for executive review. They will then be published with a 30-day public comment period. Following the comment period, the board will hold another meeting to vote to repeal or adopt final permanent standard (part II), if the vote to repeal fails. VHCA-VCAL will submit comments consistent with those we have already submitted to the agency.