WASHINGTON GAS LIGHT COMMENTS – PART 2

1. §60

    

1. Washington Gas recommends adding flexibility to all recommendations in Section 60 for medium risk employers to better align with national reopening standards. These should be suggested best practices rather than mandates.  For example, OSHA’s June 18, 2020 publication on reopening states that in Phase 2 “non-essential business travel can resume.” https://www.osha.gov/Publications/OSHA4045.pdf. However, the proposed regulation prescribes postponing non-essential travel (See §50.11 and §60 B. 1.i.).  Medium risk employers should have the flexibility to make these decisions depending on community spread in relevant jurisdictions per recent OSHA guidance.

    

2. Washington Gas recommends including the phrase “To the extent feasible” at the beginning of §60 A. 1.  

    

3. The fact that the standards in §60.A are third-party publications and not publicly available regulations raises due process concerns.  Not all employers will have access to these standards.  Employers should be given the flexibility to determine whether their air-handling systems provide for increased ventilation in response to COVID-19 without the need to analyze these third-party standards. Furthermore, regulations may not be feasible at some sites due to existing infrastructure capabilities.  CDC guidance regarding ventilation provides more flexibility for a greater range of infrastructure design, e.g. utilization of portable HEPA filtration equipment.

    

4. Section 60 B.1.a.  is ambiguous.   For example, can employees prescreen or survey remotely before coming to work?  Must this be done at the entrance to work?  Must this include temperature screens?  Similarly, the proposed regulation in Section 60 B. 1. b. is unclear because the phrase “non-employees” is not defined.  Furthermore, there is no rational for why this proposal applies only to non-employees.

    

5. For §60. B. 1. f. and §60 B.1. g, respectively, Washington Gas recommends additional language:

f.  Increase physical distancing between employees at the worksite to six feet (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).

g.  Increase physical distancing between employees and other persons (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 observe physical distancing requirements) ….

The rationale for the additional language is that there are times when service employees may have to come within 6 feet of a customer. For example, when accepting cash.

1. Washington Gas proposes the following addition to §60 C. 1. a. (i): “Except …. The types of PPE if any that …”  The vast majority of worksites outside of healthcare industry will not utilize PPE to protect employees from COVID19, because face coverings are explicitly defined to not be PPE.  This concept should be made clearer in the standard/regulation. 

    

2. With respect to §60 C.2, Washington Gas notes that Global PPE Hazard Assessments should be allowed where the employer certifies that assessment was performed on representative and typical locations.

1. §70

1. §70 C. 2. (iii) would require employers to ask employees about their other jobs and behavior outside of the workplace.  Additional guidance is necessary on this point.

    

2. The Company recommends deleting the language in §70 C. 2. (iii). B. (note: there is no subsection (“a”).  Under the Americans with Disabilities Act, employers are required to engage in an interactive process to accommodate disability requests.  This language puts the onus on employers to guess job restrictions; instead, (1) employees should be educated on CDC high risk categories, and (2) employees who fall in a vulnerable category should be encouraged to request an accommodation.  Treating these employees differently without their first making a request may violate federal law.

    

3. DOL should clarify whether §70 C. 2 (iii) c. requires employers to list the referenced controls.

    

4. Washington Gas recommends the following revised language for §70 C. 3:

    

   Consider Employers may include contingency plans for situations that may arise as a result of outbreaks due to the COVID-19 pandemic, such as….

Replacing “outbreak” is appropriate as this term is not defined.  It appears that DOL is asking employers to create contingency plans where an outbreak occurs that go beyond the required administrative and work practice controls already required.  If so, employers should be given great discretion as to how to incorporate this into a plan, if at all.  These are business judgments, and employers will have to react to specific facts on these topics as issues raise.

1. In §70 C. 6, the phrase “provide or contract or temporary employees” is ambiguous and should be clarified.

    

2. §70 C.7. is repetitive of next section.

    

1. §80

    

Given the relatively lower risk exposure associated with medium exposure levels compared to very high or high, the DOL should consider requiring employers remove “medium” exposure level from this certification requirement provided that the required communications are provided to medium risk employees.  In §80 C., DOL should clarify that §80 training does not apply to employers with jobs at medium exposure risk levels (at most).

1. §90

First, the Company recommends revising §90 C as follows: “No person shall discharge or in any way discriminate against an employee who because the employee raises……”   Second, the Company’s primary concern with §90 is that the scope of the regulation which includes “the employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social, or any other media” is overly expansive and should be limited to the employer or a government agency.

Submitted by Associate General Counsel for Washington Gas:

Meera Ahamed

202-624-6622

mahamed@washgas.com

June 22, 2020