Comments of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.CLC (USW) on the 16 VAC 25-220 Emergency Temporary Standard/Emergency Regulation – Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19
June 22, 2020
These comments are submitted on behalf of the members of the USW. We commend Governor Ralph Northam for his order and we thank the Virginia Department of Labor and Industry (VDLI) for their hard work as well as the opportunity to comment on the Emergency Temporary Standard. We support the Standard (as a standard, not a regulation) and offer our suggestions for improvement.
Employee Participation
The most critical problem with the proposal is the lack of any provision for employee participation. The standard must include a new section §100 Employee participation which enables employees and their representatives to effectively participate. Employees have invaluable experience and knowledge of the workplace. Increased participation by employees and their representatives would ensure that those most directly affected by the hazards would have a say in how they are eliminated or controlled. Many federal OSHA standards and voluntary codes contain such provisions. For example, the federal OSHA Process Safety Management Standard contains:
1910.119(c) Employee participation.
1910.119(c)(1)Employers shall develop a written plan of action regarding the implementation of the employee participation required by this paragraph.
1910.119(c)(2)Employers shall consult with employees and their representatives on the conduct and development of process hazards analyses and on the development of the other elements of process safety management in this standard.
1910.119(c)(3) Employers shall provide to employees and their representatives access to process hazard analyses and to all other information required to be developed under this standard.
At the end of these comments we suggest specific language for a new Section 100 Employee Participation.
§10 Purpose, scope, and applicability
We support including temporary employees and those subject to other joint employer relationships. All Virginians threatened by COVID-19 at work should be covered. However, employees of the Virginia’s largest manufacturing employer may not be. The Huntington Ingalls Newport News Shipyard, represented by USW Local 8888, is under federal OSHA jurisdiction. Nevertheless, we believe shipyard employees can be covered, either directly or by executive order, under two legal interpretations. First, the Commonwealth may be free to act where federal OSHA has not, which is the case here. Second, this standard, if adopted, will help prevent the spread of COVID-19 outside the workplace. Workplaces have been shown to be sources of community infection. Therefore, the standard serves a broader public health purpose than simple employee protection. Requiring public health measures inside a workplace is surely within the Commonwealth’s authority if it protects the citizenry in general.
10 D.2.b. and Section 30, Definitions: The proposal references “droplets.” However, droplets are generally considered to be larger particles. It is well known that much smaller sub-micron particles, suspended in the air, can also spread the virus. The correct term for such a suspension is “aerosol.” That word should be included with “droplets.” (Please note, the Cal/OSHA standard on Aerosol Transmissible Diseases includes “aerosol” in the title of the standard and elsewhere. https://www.dir.ca.gov/title8/5199.html.)
Additionally, employees working inside of the 6-foot rule with a known or suspected case, must be considered a “high” risk category due to the droplet and aerosol transmission hazards.
10 G: This paragraph should be removed. It states, “To the extent that an employer complies with requirements contained in CDC publications to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this standard, the employer’s actions shall be considered in compliance with this standard.” However, CDC publications are simply recommendations, not requirements. There is clearly a need for a standard because the CDC’s recommendations have failed to protect workers. In addition, the Commonwealth should not cede its rulemaking authority to a body that was never intended to be regulatory, and therefore operates without public notice and comment or any provisions designed to make rulemaking fair and impartial.
§30 Definitions
Exposure risk level: Improvements must be made in the categories of risk. They are based on OSHA’s March guidance, but now we know much more about the virus. It’s clear by now meatpacking and corrections facilities must be high risk, but we must also recognize a workplace can change categories with an outbreak either in the workplace or in the community. Working with others within a 6-foot radius, or around known or suspected patients is also high risk.
Face covering: We support the definition and thank the Virginia Department of Labor and Industry recognizing this as a control device – not PPE.
Occupational exposure: This is currently described as being actually or potentially exposed during “job tasks.” A clearer phrasing would be “during the course of employment.”
Respirator: We agree respirators must be certified by NIOSH.
Surgical mask/medical procedure mask: We agree that such devices are only effective against large droplets.
§40 Mandatory requirements for all employers
40 A.2: While screening at home is a first line of defense, it cannot replace employer screening for any employee group, no matter what the level of risk. Otherwise, symptomatic employees may be put in the impossible situation of losing pay and benefits by staying home, or potentially spreading the disease by going to work.
40 A.5: When infected, symptomatic or exposed employees are excluded from work, they should not suffer any loss of wages or benefits.
40 A.7: The proposal fails to require employers to report to VOSH any COVID-19 positive test results. We believe that all confirmed cases should be reported to VOSH, but at the very least, employers should be required to report when the case count reaches three, indicative of an outbreak.
40 B: Testing is the surest way to truly know when employees can return to work. However, given the lack of testing capacity, a symptom-based strategy may be necessary – temporarily. The proposal seems to give equal weight to both tests and symptoms, allowing an employer to rely on symptoms even when tests are widely available. We suggest that the standard specify testing as the only method for determining return-to-work, but that the Commonwealth grant a temporary exemption to all employers allowing a symptom-based strategy, revoking the exemption when the tests become widely available.
40 D.1.c: This provision states that employees “shall” wipe down areas and employers “may” disinfect work areas. These are not equivalent. The employer should be required to ensure that all common work, travel and break areas are thoroughly cleaned and disinfected.
40 I.5. The standard should require ample paid time for sanitation and disinfecting.
§50 Requirements for hazards or job tasks classified at “very high” or “high” exposure risk
50 A.3. & 4.: These provisions should be strengthened to require ventilated headboards where airborne infection isolation rooms (AIIR) are not feasible or available. We suggest adding to both paragraphs: “Ventilated headboards shall be provided where AIIR are not feasible or available.” [Note: a ventilated headboard is not a filtration system in itself, rather, it is a special inlet system designed to provide a strategically-improved air intake for a corresponding high-efficiency particulate air (HEPA) fan/filter unit. https://www.cdc.gov/niosh/topics/healthcare/engcontrolsolutions/ventilated-headboard.html]
50 A.7: Physical barriers can be helpful, but they should not create additional hazards. We suggest adding the following sentence: “Physical barriers shall be designed so as not to create additional hazards or interfere with ventilation design.” This should be added to Section 60.A.1.c as well. (This is the third clause in 60.A.1, but due to a typo is labeled “a.”)
50 B.6, 7, 8, 9 & 10: These provisions should apply to more than high or very-high exposure situations. At the very least they should be extended to medium risk exposures and tasks. We suggest removing them from this section and adding them to Section 60 or 40.
50 B.11.c.: We suggest adding “staggered breaks” to “staggered shifts.”
50 C.4.: We suggest adding: “Respiratory protection and any other PPE used to comply with this standard shall be provided by the employer at no cost to employees.”
50 C.5.: There is ample evidence that surgical/medical procedure masks provide limited protection to the wearer. Employees covered by this provision are at high or very high risk of infection. They need an actual respirator; masks should not be allowed. We recognize that there is a current respirator shortage. This situation can be addressed by allowing temporary exemptions or variances upon a showing that an employer is doing everything in his or her power to obtain an adequate supply, and has taken all feasible steps to limit exposures.
50 D. Training should be provided for employees in medium risk categories as well, and ideally for all employees.
§60 Requirements for hazards or job tasks classified at “medium” exposure risk
60 A.1.: Section 50 requires that appropriate air-handling systems are installed.
Section 60 only requires that the systems already installed are appropriate. This section should require that appropriate systems be installed where they do not exist.
§70 Infectious disease preparedness and response plan
70 A.: We suggest adding: “Employees and their representatives must be involved in development and reviews and changes in the plan. The employer shall make the infectious disease preparedness and response plan readily available for examination and copying, upon request, at no cost, to each employee and their designated representatives.”
70 B.: Workplaces with very-high, high and medium risk employees may also contain low risk employees. Given the possibility of accidental exposures they should at least receive awareness training. This will bring this paragraph into alignment with paragraph 80 A.
70 C.3.: Social distancing can itself be a hazard if it leads to employees working alone in a hazardous workplace. We suggest a new sub-paragraph d: “Changes in the workplace and work organization shall not result in employees working alone, unless there is at least one other person in seeing or hearing distance above ambient noise.”
70 C.7.: This training should at least be extended to employees facing medium exposure risks.
§80 Training
80 A.: This provision should be extended to employers in the medium risk category. In addition, we suggest adding: “The procedures and training in this standard shall be delivered in a language that the participants can understand.” The USW knows the importance of this all too well. In a USW represented workplace, Mr. Apolonio Arras, 57, was killed when he attempted to restart an industrial furnace that was full of gas. His supervisor did not speak Spanish and the breakdown in communications led to this preventable death. Many voluntary codes and standards contain such a provision.
80 C.: Employee signatures are properly required by these paragraphs, but it must be that employee’s signature only verifies attendance at a training session, not the quality of the training. The USW has seen numerous disciplinary cases where employers have used a signature sheet against employees, when it was clear that the training was not adequate. We suggest adding the following clause to the beginning of the second sentence: “In order to verify that the training took place,…”
80 E.1.: We suggest changing the provision as follows: “Changes in the workplace and the way work is organized, SARS-CoV-2…” (addition underlined).
§90 Discrimination against an employee for exercising rights under this standard is prohibited.
We strongly support this section, and suggest two additions.
90 A: At the end of the sentence, add “…,or has contracted or tested positive for COVID-19.”
90 C.: Make the following addition: “No person shall discharge or in any way discriminate against an employee who requests information, raises a reasonable concern about infection control…” (addition underlined).
As we stated at the beginning, we strongly urge that a new section be added:
§100 Employee participation
Employers shall develop a written plan of action regarding the implementation of the employee participation required by this paragraph.
A. Employers shall consult with employees and their authorized representatives on the conduct, development and implementation of all aspects of the infectious disease preparedness and response plan required by the standard.
B. Employers shall provide to employees and their representatives access to hazard analyses, controls, and all other information required under this standard.
C. Employers shall make available to affected employees and their authorized representatives all information required to be developed by this standard.
D. The employer shall provide information and training to employees on section, §90 “Discrimination against an employee for exercising rights under this standard is prohibited.
All VOSH standards protect the health and safety of Virginia’s workers. This one goes further. Other hazards can cause families to mourn and communities to suffer economically. But the actual injury does not spread beyond the injured worker. If a construction worker is injured in a fall, her family does not face an increased risk of falls. If a chemical worker contracts leukemia from benzene exposure, he will not infect others in his community with cancer. COVID-19 is different. Infections acquired at work can spread far beyond the workplace, as we have seen with nursing homes in Washington and meatpacking plants in the Midwest. This standard will make all Virginians safer. We urge the Commonwealth to adopt it without delay.
Respectfully submitted,
Steve Sallman
Assistant Director of Health, Safety and Environment
Juan A Zuniga Ayala
Safety and Health Specialist, Health, Safety and Environment
Michael J. Wright
Director of Health, Safety and Environment
United Steelworkers