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    Employment Law Alert – May 2021

    By Robert J. Barry, Labor & Employment

    Masking Rules Relaxed for Vaccinated Employees

    Many Virginia employers have been anxiously awaiting action from the Virginia Division of Occupational Safety and Health (VOSH) to conform with the CDC’s May 14, 2021, guidance relaxing face covering requirements for fully vaccinated employees. Governor Northam quickly adopted the new CDC guidance in his Executive Order 72 (7th Amendment) the next day. Even so, removal of masks at work by fully vaccinated employees was contrary to the highly publicized VOSH Final Permanent Standard (FPS). That changed on Wednesday, May 19.

    VOSH has now proposed a series of FAQs which address removal of masks and ending physical distancing for most fully vaccinated employees. The proposed guidance is expected to become official by Monday, May 24. Employers may require employees to submit proof of vaccination by producing their Covid-19 Vaccination Record Card to enjoy this new flexibility. See VOSH FAQs linked here and particularly FAQs 48 through 54.

    VOSH defines “fully vaccinated” as follows: “For the purposes of this guidance, people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson & Johnson).”

    VOSH has stated that to the extent employer practices are consistent with CDC guidelines issued from time to time, those practices will be considered compliant under the FPS. VOSH does, however, retain the ability to issue rules which are more stringent than what is required by the CDC. Employers should keep in mind that all other provisions of the FPS remain in effect.

    There is no change in masking and distancing requirements for employees who have thus far declined to be vaccinated, including those whose decision is based on medical or religious reasons. VOSH has also stated that employers that wish to continue a face covering/mask requirement for all employees for business reasons may do so.

    VOSH has said that based on the CDC’s science-based determination, fully vaccinated, non-healthcare employees can safely resume indoor and outdoor workplace duties without wearing a face covering or physically distancing. Such activities would be in compliance with VOSH’s FPS. Also, keep in mind that mask requirements remain in place for health care worksites and in public transportation.

    Practical Pointer

    Despite encouragement and nominal incentives from their employers, a number of employees have been reluctant to get vaccinated. The new VOSH guidance now adds a significant and cost-free incentive for employers to reduce vaccine hesitancy. Unvaccinated employees will no doubt see their co-workers enjoying a return to mask-free status, and this could provide a new opportunity to encourage vaccinations and increase workplace safety for everyone.


    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2021.