Submitted Electronically

Jay Withrow, Director
Virginia Department of Labor and Industry
600 E. Main Street, Suite 207
Richmond, Virginia 23219
jay.withrow@doli.virginia.gov

RE: Comments Regarding Department of Labor and Industry Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19. 16VAC25-220

Dear Director Withrow:

The Virginia Forest Products Association ("VFPA") appreciates the opportunity to comment on the Virginia Department of Labor and Industry's Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16 VAC 25-220 (collectively, the "Regulations"). The VFPA has previously commented on the Emergency Temporary Standard; we urge you once again to align any standard with CDC and OSHA guidance. Further, we strongly oppose this proposed regulation that adopts a permanent standard for a temporary pandemic.  

VFPA's members are primarily small to medium-sized businesses, many of them family owned and operated and most with under 50 employees.  A number of our member mills do not provide health insurance or paid sick leave; they simply cannot afford it.  Any additional regulation adds to costs and imposes recordkeeping burdens that are unnecessary. The temporary regulation we are currently following is problematic in a number of areas. We are very concerned that a permanent regulation would enshrine directives that are in conflict with federal regulation and Virginia Code, and will leave our members with expensive mandates.

Specifically, VFPA respectfully requests that:

Section 10g should be amended to the agency's original language providing " safe harbor" for employers who follow CDC and OSHA guidance.

Vague language in Section 40 be stricken regarding sick leave policies.  Virginia Code does NOT require that employers provide sick leave, paid or otherwise.  It is unconstitutionally vague and it exceeds the agency's statutory authority to direct insurance or benefit coverage.  The agency's purview is oversight of the physical work environment; the Code has not given it oversight for for employee benefits nor the ability to cite or fine employers for not providing benefits.

Language in Section 40 regarding "Return to Work" should be amended to mirror the latest CDC Guidance issued August 10 regarding the time-based return-to-work rule.  The CDC now recommends at least 10 days symptom-free before returning to work, not 3 as stated in the regulation.  Again, this regulation should be consistent in all ways with CDC medical guidance.

Language in Section 70 ("Infectious Disease Prepardeness and Response Plan)" , Item 6, should be stricken.  No business should be responsible for those not under their direct employment to comply with this regulation, nor should they be sanctioned when non-employees violate any part of this regulation.

Language in Section 70 should be eliminated regarding requirements to include business considerations (e.g., how to handle supply chain issues, crosstraining to prepare for staff shortages) that have nothing to do with employee safety.  Again, these internal business operational decisions are beyond the legal authority and purview of the agency.

All of the language in Section 90 regarding discrimination against employees who raise concerns to the public through social media should be stricken.  There is no other similar protection we are aware of for employees to distribute potentially damaging and unfounded information against an employer with impunity. 

The duty of employers to report positive employees to the Department of Health should be eliminated, as health care providers are already reporting this data to the Health Department.

Finally, we would strongly suggest that this Permanent Standard sunsets with the Governor's State of Emergency, just as the Emergency Temporary Standard does.  Again, without this sunset, regulations will be in effect for a pandemic that, with the advent of a vaccine, will no longer be necessary.

In closing, we would like to reiterate our opposition to a permanent standard for COVID-19.  However, should a permanent standard be adopted we strongly urge a sunset provision with the specific changes cited above. 

Thank you for this opportunity to comment.

Sincerely,


Don Bright
Chairman