RICHMOND, Va. (WRIC)- Fully vaccinated workers in Virginia don’t have to wear a face covering under Gov. Ralph Northam’s new executive order and CDC guidelines.

But some say confusion over enforcement is prompting businesses to keep mask requirements in place, despite the Northam Administration’s recent attempts to clarify.

Gov. Northam’s amended order says employees in certain industries—including restaurants, retail, fitness, personal care, and entertainment—must continue to wear masks unless they’re fully vaccinated.

It furthers that the order should take precedent in cases where it contradicts Virginia’s permanent workplace safety regulations, which were put in place to protect employees in high-contact industries during the pandemic.

For months, these first-in-the-nation standards have required all staff in certain sectors to mask up if they interact with customers or can’t maintain social distancing throughout their shift.

Now, questions over whether Northam’s order conflicts with these regulations are causing some businesses to hesitate, according to National Federation of Independent Business’s Virginia Director Nicole Riley.

“The governor, probably well-intended but unfortunately, has put businesses in a legal pickle here. They have to choose between do they follow the science and the CDC guidance or do they follow the law, which is the permanent regulation,” Riley said. “We certainly would like to see it repealed before the State of Emergency ends.”

Currently, those regulations are considered permanent. However, within 14 days of the expiration of the Governor’s COVID-19 State of Emergency, the Health Codes Board is expected to meet to determine whether there is a continued need for these standards. The State of Emergency is set to expire on June 30 without further action from Northam.

In the meantime, violators risk being cited by inspectors, hefty fines and even closure in the worst cases, according to Riley.

After some confusion, the Virginia Department of Labor and Industry released an FAQ this week clarifying that businesses are free to follow the Governor’s new guidelines allowing workers to remove their masks two weeks after recieving their final shot. 

Still, Riley said there is uncertainty surrounding enforcement.

“FAQs on a website really aren’t legal cover for small businesses,” Riley said.

Jennifer Rose, VOSH Cooperative Programs Director with the Virginia Department of Labor and Industry, confirmed in an email that inspectors will continue to enforce the workplace safety standards with new CDC guidance in mind.

“Inspections can be initiated for a number of reasons, fatalities, catastrophes, complaints, referrals, and programmed inspections,” Rose said. “Should VOSH conduct an inspection of an employer where it is alleged that violations of the VOSH regulation occurred because one or more exposed employees were not fully vaccinated, no citation will be issued when the employer can demonstrate that the employee was fully vaccinated at the time of exposure.”

Riley said that guidance doesn’t clarify how businesses are supposed to determine or document an employee’s vaccination status.

Rose said “the most obvious way” is to simply ask.

“Our regulation does not specify how the employer is to determine the vaccination status of their employees. Nor do we specify how, or if, the employer chooses to document this,” Rose said. “There are no Virginia laws, standards or regulations that prohibit employers from asking employees if they have received the COVID-19 vaccine and are fully vaccinated, and if so, requiring employees to show proof of full vaccination.”

Paul Kincaid, owner of Can Can Brasserie in Richmond’s Carytown, said he’s not requiring proof from his employees before allowing them to go maskless but he knows from prior conversations that the vast majority are fully vaccinated.

“I’ve spent the last year convincing everyone to listen to the CDC and mask up and now they’re telling us we don’t need to. I’m willing to listen to them again,” Kincaid said.