Virginia businesses uncertain as Northam restriction changes may conflict with DOLI regs

(The Center Square) – Although Gov. Ralph Northam is easing most of the state’s COVID-19 restrictions, some of these changes appear to conflict with regulatory code adopted by the Virginia Department of Labor and Industry earlier this year, which is causing some confusion among businesses.

Last Friday, the governor ended the universal mask mandate and announced social distancing and capacity restrictions will end May 28. However, certain rules in DOLI’s permanent regulations appear to mandate harsher restrictions than will be in place by the governor’s executive changes.

Under Northam’s executive order, restaurant workers and other employees who work closely with customers must only wear face coverings if they are not vaccinated. The regulatory standards, however, require workers to wear face coverings if they cannot socially distance from employees, customers or any other person, regardless of whether they have been vaccinated against COVID-19.

The upcoming end to social distancing and capacity restrictions also appears to conflict with DOLI regulations that require employers to ensure employees are socially distancing during breaks and to limit access to breakrooms.

DOLI’s Safety and Health Code’s Board voted to adopt these standards permanently, which means they will only end after the board repeals them. The board is required to meet within 14 days of the end of the state of emergency to decide whether to keep or end these rules. However, Northam extended the state of emergency until June 30, which is about a month and a half after the face mask changes went into effect and more than a month after the social distancing and capacity changes are meant to go into effect.

When DOLI was considering a permanent adoption of these standards, members of the business community warned it could unnecessarily extend restrictions longer than necessary.

Jennifer Rose, a spokesperson for DOLI, told The Center Square the department will update its FAQs on its webpage to clarify how the standards are affected by the governor’s changes. However, the FAQ page is simply guidance and does not constitute a change in regulatory code.

“DOLI has 14 days after the end of the Governor’s State of Emergency to reassess the regulation to determine if it is still necessary,” Rose said. “Until then, the standard will remain in effect. As CDC guidelines and Executive Orders are issued, DOLI issues FAQs on our webpage to clarify how our standards are affected. There will be more posted this week regarding how the mask mandates will affect the standard requirements.”

Although updating the guidance will help businesses know what the agency intends to enforce, some are worried that changes to the guidance without a change to the actual regulatory code would not hold up in court if a business is penalized, Nicole Riley, the Virginia director for the National Association of Independent Business, told The Center Square.

Riley said most lawyers will likely encourage businesses to follow the rules in the code, even if DOLI changes its guidance. She urged DOLI to repeal the rules as soon as possible to avoid any conflict, which would cause confusion for businesses, particularly small businesses.

Businesses will also be forced to comply with DOLI’s other regulations, which include sanitation rules, training rules, reporting mandates and protocol for when a person has possible COVID-19 symptoms. It also includes rules for creating physical barriers in some cases, to prevent the spread of the virus.

Riley said compliance with these rules will continue to be costly for businesses that are still struggling from the effects of the pandemic and subsequent restrictions. With vaccinations on the rise and cases going down, she said “it’s time for Virginia to fully open up.”

Robert Melvin, the director of government affairs at the Virginia Restaurant, Lodging & Travel Association, also told The Center Square that these regulations are “problematic.” He said continuing to require compliance with these regulations will not help businesses.

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