COMMENTS OF WASHINGTON GAS LIGHT COMPANY
PART 1
These comments are submitted in two parts due to technical limitation although the Company was within the prescribed word limit.
Washington Gas Light Company (“Washington Gas” or “Company”) appreciates the opportunity to provide comments on the draft regulations issued on June 12, 2020 by the Virginia Department of Labor and Industry (“DOL”), proposed 16 VAC 25-220, Emergency Temporary Standard/Emergency Regulation Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (“proposed regulations”).
Washington Gas, a public service company, is committed to the vision of “Safe employees, safe service and a safe public, today, tomorrow and the future.” In response to the COVID-19 pandemic, Washington Gas has proactively implemented various safety measures and protocols to ensure the safety of its customers, contractors, employees and the public at large, and has complied with safety and health guidelines and recommendations from the Centers for Disease Control (“CDC”), as well as social distancing directives in Virginia, Maryland and the District of Columbia. In internal and external messaging, the Company has consistently stressed the importance of wearing appropriate Personal Protective Equipment (“PPE”) and the importance of social distancing. The Company has emphasized to employees that they are not to come to work if they are experiencing any symptoms consistent with COVID-19 and it utilizes a questionnaire when arranging in-home service calls to determine whether the customer’s premise presents any elevated risk of exposure for our crews.
§10
To avoid misinterpretation and ensure specific guidance is followed, the proposed regulation should reference the specific CDC guidelines (with dates) in place of the language reflecting CDC publications generally. Also, the language in this section suggests that if an employer complied with CDC guidelines, it would also be in compliance with the proposed regulations. However, some of the standards included in the proposed regulations are different than those required by the CDC (e.g., the requirement to clean between each shift).
In §10D.2.a., the phrase “COVID-19 person” is undefined and therefore ambiguous. Does the phrase mean “COVID-19 infection of a person”?
In §10 D. 2. b., the phrase “contaminated surfaces” is undefined and therefore ambiguous. Does this mean frequently touched or high touch point surfaces? Dirty? Contaminated with COVID-19?
Section 10E includes “temporary employees and other joint employment relationships, as well as persons in supervisory or management positions with the employer,” and thus greatly expands the applicability of the regulation. It also creates ambiguity regarding who is responsible for executing the requirements in this standard. “Employees” should be limited to those who are employed by an employer.
§ 20
It is unclear why the time period in which the regulations are in effect exceed the time period for the standard. If the standard has expired, the regulations cannot be effective. This needs to be clarified.
3. § 30
This section addresses (in part) to barriers for employees in the Low risk category. Washington Gas notes that while the CDC calls for physical barriers, the requirement for floor to ceiling barriers is more restrictive and could negatively impact building air flow and the operation of commercial HVAC systems. Physical barriers can be helpful but this language does not account for the flexibility of different types and sizes of physical barriers.
The sample list of “Medium” exposure risk hazards or job tasks of proposed referenced in §30 includes a wide range of jobs. However, the regulation does not take into account that the risk of exposure may differ within job tasks. For example, although listed as one category, indoor construction settings and outdoor construction settings would not present the same risk of exposure. The Company recommends that the DOL either consider either moving outside construction work to a lower risk exposure category, or stratifying the Medium risk job tasks based on risk.
Definition of “Economic feasibility:” The financial impact of COVID-19 is not in dispute. Employers should have flexibility to demonstrate economic infeasibility that is specific to their own business and acknowledge the cost recovery afforded to regulated businesses by their regulators. This criterion is vague as to how one would determine whether an employer lags behind the industry.
Definition of “High” exposure risk tasks or jobs. This category should be limited to healthcare, emergency and mortuary services. For example, it is unclear what “non-medical support services” includes and whether this goes beyond those in healthcare, emergency, and mortuary services.
In the definition of “Known COVID-19,” the clause “with reasonable diligence” is ambiguous and should be deleted. There is no guidance on what would be considered reasonable diligence.
In the definition of “May be infected with SARS-CoV-2,” the clause “with moderate or substantial SARS-CoV-2 ongoing community transmission” is ambiguous. How should employers determine if a locality, city, town or county has moderate or substantial SARS-CoV-2 ongoing community transmission?
For the definition of “Personal Protective Equipment,” for greater clarity, based on the existing body of law on the federal PPE standard, DOL should incorporate 29 CFR 1910.132 instead of an OSHA website reference.
For the definition of “Surgical/Medical procedure mask,” DOL should add common examples of the difference between “Surgical/medical procedure mask” and “face covering” (also defined in §30).
The definition of “Symptomatic” includes a reference to the CDC website which—with respect to COVID-19 (definition and symptoms)—is frequently updated. DOL therefore should include dates and screenshots of CDC and other websites to ensure that the regulated community understands the exact guidance referenced. Otherwise, regulated companies are unable to provide notice and comment to future versions of the publications in the footnotes and would thus be potentially deprived of due process rights.
4. §40
§40. A. 3. This section should be deleted in its entirety. Based on recent Equal Employment Opportunity Commission (“EEOC”) guidance, the Americans with Disabilities Act (“ADA”) prohibits employers from asking employees about results of antibody tests. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws at A.7. Antibody test results are confidential medical information, and an “antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity’ standard for medical examinations or inquiries for current employees.”
§40A. 4. This provision should include the qualification “if confirmed to have symptoms of COVID-19” for “employee” used in the second sentence. Otherwise, this category could include reports that do not reflect COVID-19 symptoms.
For §40 A.5., to avoid ambiguity, the definition of Section 40.B should be incorporated rather than simply referenced. The Company recommends: “….the job site as defined in see §40.B.” Written as is, the definition implies the need for a return to work clearance from a healthcare provider.
The provision “To the extent feasible….. aware of these policies” in §40 A.5, if broadly interpreted, could have far reaching implications. In other jurisdictions, employers are merely encouraged to provide flexible leave. “To the extent feasible,” creates vague requirements with respect to leave that must be provided.
In §40 A.6., “contract” should be replaced with “contractor” (also in §40 A.7.), and the phrase “until cleared for return to work” should include the additional language “by their employer as defined in §40.B.”
In §40A.7, DOL should consider that the 24-hour notification requirement would be difficult to meet for companies—such as Washington Gas—whose employees work different, potentially overlapping, shifts. Once Washington Gas is informed of a positive COVID-19 test, the Company immediately initiates an investigation—often within 24 hours—to determine other employees potentially exposed to the individual who tested positive. Despite these best efforts, there may be circumstances out of Washington Gas’ control when a potentially affected employee may not be notified within 24 hours (e.g., if the potentially affected employee is on leave or does not answer their phone). Washington Gas makes purposeful notifications to appropriate employees based on CDC guidelines for contact tracing.
In §40A.7 a, the phrase “its own employees” is overly broad. Does this require company-wide disclosure for all employees throughout the Commonwealth, or to employees who are close contacts (defined by CDC as 6 feet for 15 minutes or more)? Or to all other employees who worked at the same jobsite?
§40A. 8, should be revised to include the underlined language: Each employer…. exposure and medical records, if any ……its specific industry. DOL should add a reference to OSHA’s June 18, 2020 guidance on this topic (https://www.osha.gov/Publications/OSHA4045.pdf), which clarifies that “If employers do not record workers’ temperatures, or if workers’ temperatures are recorded but not made or maintained by a physician, nurse, or other health care personnel or technician, the mere taking of a temperature would not amount to a record that must be retained.”
In §40B, DOL should clarify whether protocols for testing prior to coming to work would be based on a checklist provided to employees and the use of the honor system by each employee complying, or whether there is there an expectation of the employer to validate this has been completed by each employee prior to coming to work. Although Washington Gas does not currently require antibody testing protocols and return to work stipulation, the Company would not oppose this if the regulations are established around the Health Insurance Portability and Accountability Act (“HIPAA”), EEOC, and ADA guidance.
The phrase “refuses to be tested” in Sections 40.B. 1.b. (i) and 40 B. 2. B. (i) is problematic because it implies employers are inherently involved in the employee’s decision to use the symptom- or test-based strategy, and/or that tests must be offered as a first step. If this is true, it would be a departure from other jurisdictions passing similar standards and significant burden to the regulated community. It also poses practical issues—what if tests are not available?
In Section 40.B. 1.b (ii), are employers required to offer and pay for COVID19 tests to everyone who leaves work with a headache (a symptom of COVID19)?
Washington Gas recommends the following additional language for §40 C.:
Unless otherwise provided in this standard/regulation, for example where the nature of an employee’s work or the work area does not allow them to observe physical distancing requirements….
The proposed regulations in §40D.1.a. and b. do not include a definition of “common area,” leaving uncertain whether it would include areas such as hallways, conference rooms, or stairwells.
Sections 40.D. 1.c., and 40. I. 5 require cleaning between or at the end of shifts. Washington Gas is concerned about the feasibility and practicality of these requirements, as worded because they do not appear to take in to account that the scenario of multiple or even overlapping shifts at a location, as explained above regarding Sections 10.A and 40.F. The DOL could require employees to clean and disinfect areas throughout the day, generally, rather than mandating a prescriptive regime that may not be practical.
It is unclear whether face coverings (as defined in the regulation) could satisfy the standard in §40.E and F.
In §40 I. 6., Washington Gas recommends the following additional language: “[W]here disinfecting is required, employers shall ……viral pathogens.”