Agencies | Governor
Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
Previous Comment     Next Comment     Back to List of Comments
9/25/20  3:49 pm
Commenter: Debbie Berkowitz National Employment Law Project

We strongly Support A Permanent Standard

Dear Commissioner Davenport and Members of the Safety and Health Codes Board,

The National Employment Law Project (NELP) submits the following comments in strong support of the adoption of a Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19, 16 VA 25-220.  This standard must be applicable to every employer, employee, and place of employment in the Commonwealth of Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program. We urge the Virginia Safety and Health Codes Board and the Department of Labor and Industries to adopt as permanent the current Emergency Temporary Standard[i] on COVID-19 with a few recommended changes to strengthen the rule.

NELP is a non-profit law and policy organization with 50 years of experience providing research, advocacy, and public education to advance the employment and labor rights of the nation’s workers. NELP seeks to ensure that all employees, and especially the most vulnerable ones, receive the full protection of employment laws, including health and safety protections. NELP’s Worker Health & Safety Program Director, Deborah Berkowitz, is a former OSHA official and expert in OSHA enforcement and health and safety standards. NELP works with unions such as the United Food and Commercial Workers Union and the International Brotherhood of Teamsters in Virginia (VA), as well as VA based community and worker rights organizations such as Virginia Legal Aid Justice Center and the Virginia Interfaith Center for Public Policy. NELP also works with employers through the American Sustainable Business Council.

In this pandemic, protecting workers from exposure to COVID-19 at work will ensure that workplaces don’t become vectors of COVID-19 infection that then spread back out into the community. This week, we mark the startling fact that our nation has now seen over 200,000 deaths from COVID-19 and 6.9 million cases,[ii]a clear sign the virus is not disappearing. The number of deaths continues to climb, as do outbreaks nationwide and in Virginia.  Without permanent protections at work, workers will be at unnecessary risk. NELP urges the Board and DLI to do their job and protect workers and the public by implementing a permanent standard.

We have seen firsthand in just a few short months since it went into effect, how the Virginia Emergency Temporary Standard for COVID-19 has protected workers. For example, NELP provided technical assistance in a situation where workers were very concerned about unsafe conditions related to COVID-19, and then they read the standard and realized their employer had an obligation to provide certain protections and raised these issues. In addition, we are aware of a complaint filed right after the standard was implemented that alleged violations of the standard.  It resulted in immediate changes in the workplace once Virginia OSH began its inspections.

The Emergency Temporary Standard (16VAC25-220) is a common-sense standard based on science and long-standing effective occupational health and safety practices.  We support all the key protective  provisions of the standard that seamlessly work together to create a strong and effective standard (Section 10 through Section 90), including the requirement for assessing the workplace for hazards and job tasks that can potentially expose employees to COVID-19; the return to work protective requirements; the  notification requirements of positive cases to workers, health departments, tenants, and VOSHA; requirements for cleaning and disinfecting; requirements to provide handwashing /hand sanitizers; the comprehensive anti-retaliation language in 16VAC25-220-90;  and the requirements for ventilation, physical distancing, masks, protective equipment and training.  Virginia must make this standard permanent.

We strongly support the adoption of the Emergency Temporary Standard as a permanent standard with the following suggestions:

  1. Delete 16VAC25-220-10 G. This clause must be deleted so that it is clear to all covered businesses that they must comply with this standard. Standards are set so workers though out the state are guaranteed a certain level of uniform protection. Employers are always free to implement more protective measures. This clause is confusing to both workers and employers about what is required, and this must be deleted from the standard.[iii]


  1. Include in 16VAC25-220-40 C the requirement that workers who have been in close contact with someone who has COVID-19 shall not report to work until they have quarantined for 14 days per CDC guidance.[iv]  This must include a requirement that  the employer must provide up to two weeks of paid reassignment or sick leave in addition to whatever benefits to which the worker would otherwise be entitled (such leave will be provided at 40 hours per week for full-time employees and on a pro-rata basis for part time employees.)

We thank you for your time and consideration. Since early February, we have known that COVID-19 has been spreading in the workplace. Though all workers either on the job now, or returning to work in the near future, are at risk of illness and death, Black and Latinx[v] workers and other workers of color, including immigrants, are more likely to be in frontline jobs and these communities have disproportionate rates of serious illness and death related to COVID-19.  If exposure to COVID -19 is not mitigated at work, it will continue to spread in the workplace and then back out into the community. The Virginia Safety and Health Codes Board and the DLI must do their job and approve this standard to protect workers in the great state of Virginia, and thus all Virginians.


Debbie Berkowitz, Worker Safety and Health Program Director

National Employment Law Project




[iii] This is the clause that NELP urges the Board and the Department of Labor and Industries to delete: 16VAC25-220-10  G. 1. To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 virus and COVID19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard, the employer's actions shall be considered in compliance with this standard. An employer's actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-COV-2 and COVID19 related hazards or job tasks addressed by this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard.



CommentID: 86344