Employment Law Alert – The Delta Dilemma: Virginia Employers Ponder Next Steps to Keep the Workplace Safe

    By Labor & Employment

    It was only a few months ago we were hearing vaccination is working; COVID is on the decline, and the vaccinated can forgo wearing the colorful masks we’ve all accumulated. Today, the Delta variant of COVID is generating infection rates the likes of which we have not seen since last winter. What should our response be?

    It is no secret that resistance to vaccination remains formidable. Some employees, perhaps, still await full approval for the vaccines that are available under EUAs (Emergency Use Authorizations). But that issue should disappear quickly in the coming weeks, as full approval looms on the horizon. The torrent of anti-vaccine misinformation raging through the Internet no doubt plays a part in this resistance, although by now most employees should no longer fear being made magnetic or having their DNA altered. 

    Despite lingering employee concerns, widespread vaccination remains the single best hope for corralling the pandemic. Virginia’s “Vaccine Czar,” Dr. Danny Avula, commented when he was contacted for this article that “the Delta variant presents a new challenge, and it’s going to mean we need even more Virginians to get vaccinated as quickly as possible.” Unfortunately, incentives and encouragement have produced only limited results for many workplaces. Now employers are mulling over what stronger steps they can take to get vaccination rates up without losing valuable employees. There are a number of concrete steps that HR professionals can implement or recommend to that end.

    First, there is no doubt that employers have the authority to mandate vaccination (provided they accommodate religious and disability-related exemptions). But just as some employees fear getting vaccinated, some employers fear that mandating vaccinations may lead to the loss of employees. 

    A second possible solution is the course charted by, among others, the Commonwealth of Virginia: get vaccinated now, or get tested every week. On August 5, 2021, Virginia Governor Ralph Northam issued Executive Directive No. 18, effective September 1, which requires some 122,000 Virginia state workers to show their state employer proof that they have been vaccinated against COVID-19 – or undergo weekly testing to prove they are uninfected. In either case, masks will be required of all state employees and state contractors while indoors and doing business, unless fully vaccinated. Governor Northam’s Directive “encourages” all local and private employers in the Commonwealth to follow Virginia’s lead.

    For those who seek to implement the “get shot once or get tested weekly” regimen, remember that employers should pay for the expense of getting tested and make sure that employees know they must get good-quality tests administered by health care professionals. A recent meta analysis of at-home tests shows that they are not particularly reliable with only a 58% detection rate for persons who actually have COVID, resulting in a 42% rate of false negative tests. A separate study of the four most widely-available commercial at-home tests, published in April 2021, concluded that the respective sensitivities of each of the four tests ranged from 44.6% to 54.9%.  

    Virginia’s action follows the recent guidance from the Centers for Disease Control, in response to the Delta variant surge, that even the fully vaccinated should wear a mask indoors if they live or work in an area of “high or substantial transmission.” By far the majority of Virginia’s towns and cities are listed as areas of high or substantial transmission, even though Virginia’s vaccination rate is among the highest in the nation, with over seventy percent of adult Virginians having received at least one vaccine shot.

    Requiring employees to work remotely is another step that employers can take to help keep their workplaces safe. While this step may not help get more individuals vaccinated, keeping unvaccinated employees out of the workplace may keep workplaces safer and employers have gotten used to employees working remotely during the pandemic. But many employers still feel that their workforces are more effective working together in the workplace and are accordingly focused on increasing vaccination rates.  

    Once employees are vaccinated, employers can require employees to provide their vaccination cards to confirm their vaccination status without concern of a HIPAA violation. Accordingly, the cards can be requested by, scanned, and emailed to HR.      


    On October 27, 2021, K&C’s Employment Team will be presenting a day-long seminar to help employers get ready for the Post-Pandemic Workplace. Virginia’s “Vaccination Czar,” Dr. Danny Avula, will be on hand to present the latest vaccination news and will let attendees know what to expect in the future with multiple variant strains and booster possibilities. Representatives from a number of relevant government agencies like the new Director of the Equal Employment Opportunity Commission, Thomas Colclough, will also be present to help let employers know how to comply with employment laws during these trying times. As always, attendees will be encouraged to ask questions and a number of timely topics will be presented. Attendees can also earn up to 6 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI) and 5 PPCs toward SHRM-CP or SHRM-SCP. For more information or to register, click here

    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 2024.