June 22, 2020

C. Ray Davenport

Commissioner

Department of Labor and Industry

Main Street Center

600 East Main Street, Suite 207

Richmond, Virginia 23219

Re:      16VAC25-220, Emergency Temporary Standard/Emergency Regulation, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, June 12, 2020.  

Dear Commissioner Davenport:

On behalf of the Virginia Hospital & Healthcare Association’s (VHHA) 26 member health systems, with more than 125,000 employees, thank you for the opportunity to comment on the Department of Labor and Industry’s (DOLI or Department) Emergency Temporary Standard/Emergency Regulation regarding Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (hereafter referred to as the “emergency regulation”). Since early March, Virginia’s hospitals and health systems have been on the frontline treating patients inflicted with the COVID-19 virus and playing a leading role in the Commonwealth’s response to the pandemic. Throughout these efforts, Virginia hospitals have remained steadfastly committed to our top priority – the safety of our patients, visitors, employees, and the communities we serve.

As the Commonwealth continues its important work to reopen businesses and jump start our economy, ensuring that workers across the state can return to their normal activities safely is critically important. We believe that extending some of the strategies already employed by hospitals to other employer settings, as appropriate, will help mitigate community spread and future outbreaks. However, we are concerned that the broadly applicable nature of the emergency regulation, as well as several specific provisions, will have burdensome and costly implications, at the same time as hospitals and health systems continue to care for COVID-19 patients, reopen facilities, and face mounting financial pressures.

For the reasons outlined below, we request that the Department explicitly exempt hospitals and health systems – including ambulatory care sites, outpatient clinics, imaging centers, physician practices, support facilities, and any other facility or entity under the ownership and control of a hospital or health system – from the emergency regulation. Infection prevention and control is a daily, ongoing focus within Virginia hospitals and health systems. Operating under the oversight of the Centers for Disease Control and Prevention (CDC), the Centers for Medicare & Medicaid Services (CMS), the Virginia Department of Health (VDH), and various other accreditation and regulatory authorities, hospitals and our ancillary facilities are required to consistently demonstrate that their patients and staff receive and provide care in a safe environment. This includes development and implementation of comprehensive infection control plans, quality improvement programs, managing supply chain, training employees and caregivers, ensuring employees’ have the resources they need, planning for future health emergencies, and working with congregate care settings, among other activities.

In other words, infection prevent and control, as well as reliance on various other policies and protocols to ensure the safety of our patients and employees, is not a new focus for Virginia hospitals and health systems. It is an ingrained component of our daily operations. Consequently, imposing new regulatory requirements, many of which duplicate the policies and protocols already in place within our facilities, will unnecessarily result in burdensome new compliance costs without meaningfully improving our ongoing efforts to protect our patients and employees.

Alternatively, the Department could at a minimum amend Subsection G of § 10 of the proposed emergency regulation, which states that an employer in compliance with CDC publications regarding COVID-19 will be considered in compliance with the standard/regulation. The guidance and regulations with which hospitals must comply extend well beyond the CDC. Numerous other requirements from CMS, VDH, and others guide our infection prevention and control efforts both generally and specifically related to COVID-19. The Department should acknowledge these requirements and explicitly state that hospitals, health systems, and other facilities under their control that are in compliance with the broader industry standards set forth by state and federal health care regulatory entities are not subject to enforcement actions under the emergency regulation.

If hospitals are not explicitly exempt from the emergency regulation, several provisions need to be clarified and/or updated to address the specific circumstances surrounding hospitals’ role in and response to the COVID-19 pandemic. For example, Subsection A.1 of § 40 requires employers to assess their workplace for hazards and classify each employee according to the hazards they are potentially exposed to and the job tasks they undertake. Assessing and classifying each of the more than 125,000 hospital and health system employees will impose a significant burden. For those employees in clinical roles, it is a commonly accepted and acknowledged duty as a medical professional that they may be exposed to infectious disease. Taking the time and effort to classify them as such for the purposes of regulatory compliance is unnecessary. For others in non-clinical roles, many of whom are now working remotely, the risks are far lower and do not warrant the added regulatory burden. VHHA recommends that this section be amended to exempt health care professionals and others employed by hospitals and health systems given our pre-existing policies and protocols regarding infection prevention and control and protecting our workforce. Additionally, classification of employees by job title, department, or other category that allows for assessment of hazards and risk by virtue of being included in that category should be permitted.

Subsection A.5 of § 40 (Note: the emergency regulation includes two subsections denoted as A.5 and our comments pertain to the first subsection) prohibits employers from permitting known or suspected COVID-19 employees or others to report to or be allowed to remain at work.  While the intent of this prohibition is clear, as a practical matter it is problematic to require ongoing monitoring of all employees who may be experiencing symptoms that are not visible without examination or inquiry.  Furthermore, it is difficult or impossible to enforce where the employee or other person does not physically report to a facility or building under the surveillance and control of the employer as distinct from a teleworking arrangement.  To address this, the prohibition could be limited to not “knowingly” permitting the employee to report to or be allowed to remain at work.  Alternatively, the prohibition could be limited to those employees who report COVID-19 to the employer under Subsection A.3 of § 40. Additionally, this subsection should be amended to explicitly state that hospitals and health systems which follow the CDC guidance pertaining to exposed healthcare workers returning to work will not be subject to enforcement actions under the emergency regulation.

The requirement in Subsection A.6 of § 40 is unnecessary and inappropriate to impose on employers.  Those subcontractors and companies that provide contract or temporary employees are presumably subject to these regulations by virtue of being an employer in their own right and an upstream employer should not bear this burden.  Furthermore, such encouragement is more appropriate coming from DOLI.

Subsection A.7. of § 40 requires employers to notify their employees within 24 hours if an employee, subcontractor, contractor, temporary employee, or other person who was present at the place of employment within the previous 14 days tests positive for COVID-19. This requirement poses several challenges for hospitals. First, it is unclear whether the term “other person” includes patients. If so, notifying every employee, contractor, etc. each time a patient tests positive for COVID-19 is simply impractical. Hospitals are testing thousands of suspected COVID-19 patients across the Commonwealth each day. While many of those patients test negative for the virus, this requirement could result in hospitals having to send out hundreds of notifications on a daily basis. Secondly, given the inherently higher risk of exposure in the health care setting, notifying every employee of a hospital or health system each time an employee tests positive will similarly require an unreasonable level of ongoing notification. Even assuming a blast e-mail meets the requirement, notifying every employee – clinical or non-clinical – upon a positive test of essentially anyone entering the facility within a 14-day period is unrealistic and could have Health Insurance Portability and Accountability Act (HIPAA) privacy implications.

Hospitals and health systems have dedicated occupational health units that work to ensure employee health, safety, and wellness. These units closely follow established policies and CDC and other guidance regarding employees that may be exposed to infectious diseases. VHHA recommends that this section be amended to state that employers with occupational health units and/or established protocols must follow those protocols and CDC and other guidance regarding contact tracing and notification in the event an employee tests positive. This section should also be amended to explicitly note that hospitals are not required to notify all employees when a patient tests positive for COVID-19.

Subsection C of § 40 requires employers to ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property.  For large employers or for employers with expansive property or multiple staggered shifts, such an obligation may be impractical or impossible to enforce. VHHA recommends that this provision be modified to require that the employer “shall establish policies and procedures designed to ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property.”  This creates a standard that allows the employer to monitor compliance where feasible, encourages reports of non-compliance, but does not apply “strict liability” to the employer in the event there is non-compliance despite reasonable efforts to prevent it.

Subsections B.1. of both §§ 50 and 60 require employers, to the extent feasible, to prescreen or survey each covered employee who is not COVID-19 symptomatic prior to each shift. Depending on the size of a hospital, a single shift could involve several hundred, if not more, employees. Some of those employees are clinical and treat COVID-19 patients, some are clinical and do not treat COVID-19 patients, and many others do not serve in clinical roles and are at minimal risk of exposure to infectious disease. Hospitals across the Commonwealth have already deployed numerous policies and protocols for screening health care workers that may be or have been exposed to COVID-19. Expanding those policies and protocols to every worker across a hospital or health system will substantially increase the burden on staff. This section should be amended to state that employees of hospitals and health systems should be screened based on the clinical judgment of health care professionals in those facilities and in accordance with CDC guidelines.  

Lastly, Subsection B.7. of both §§ 50 and 80 impose requirements that all employees receive training on COVID-19 and the requirements of the emergency regulation. Those employees in clinical roles that treat COVID-19 patients have already received extensive training on infection prevention and control related to COVID-19, and other employees receive similar training on infection prevention and control generally as appropriate. Extending training requirements to all employees, even those that work at non-clinical, off-campus facilities, many of whom are now teleworking, will significantly increase training costs and require a substantial time commitment on top of the added demands already imposed on hospital employees due to COVID-19.

While COVID-19 may be the first pandemic in recent years to broadly impact the Commonwealth, Virginia’s hospitals and health systems deal with issues surrounding infection prevention and control, patient and workforce safety, and employee wellness on a daily basis. We have long-established policies and protocols governing these aspects of our operations and work closely with a variety of regulatory authorities to promote a safe care environment for our patients and our employees. Our utmost priority always has been and always will be the safety of our patients, visitors, employees, and the communities we serve.

We appreciate the intent behind the emergency regulation and believe that the Department should work with industries less experienced in infection control and prevention to help mitigate and prevent further community spread of COVID-19 in the workplace. However, the additional and duplicative requirements for hospitals are unnecessary, and they will have numerous burdensome and costly implications for hospitals and health systems at a time when we are still fully immersed in both the health and economic effects of the COVID-19 pandemic.

Thank you again for the opportunity to comment on the emergency regulation. As the Virginia Safety and Health Codes Board considers adoption of the emergency regulation, we again request that hospitals and health system be exempt from the requirements or that, at a minimum, the amendments requested above be incorporated in the final regulation.

Please do not hesitate to contact Brent Rawlings (brawlings@vhha.com, 804-965-1228) or me at your convenience if we can provide any additional information regarding our suggested modifications.

Sincerely,

/s/

Sean T. Connaughton

President & CEO