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9/25/20  4:52 pm
Commenter: Amalgamated Transit Union

Enact the Permanent Covid-19 Standard to Protect Virginia Workers
16 VAC 25-220
Proposed Permanent Standard
Infectious Disease Prevention: 
SARS-CoV-2 Virus that Causes Covid-19
Comments in Support of the Proposed Permanent Standard by the
Amalgamated Transit Union
International President John Costa
The Amalgamated Transit Union (the “ATU”) submits the following Comments in strong support of the permanent standard regarding infectious disease prevention and the SARS-CoV-2 virus that causes Covid-19 that is under consideration by the Virginia Safety and Health Codes Board (the “Board”). As the labor union representing bus, rail, and paratransit workers employed throughout Virginia, the ATU comes to the Board to present the pressing and immediate safety concerns that its Virginia members carry with them every day as they perform the essential work of connecting Virginians to jobs, medical care, and life-sustaining services in the midst of the Covid-19 pandemic. 
The pandemic has not eliminated these transportation needs, nor has it diminished ATU members’ dedication to serving the riding public. Fortunately, since the adoption in July 2020 of the Virginia emergency temporary standard regarding SARS-CoV-2 and Covid-19 (the “ETS”), ATU members have been able to perform their public service with enhanced access to personal protective equipment (“PPE”), more personal space, improved communications with employers regarding Covid-19 infections at worksites, and other important protections. As the pandemic persists and medical and scientific experts forecast an increase in infections, it is essential to maintain the protections provided by the ETS in the form of the permanent standard now under consideration. Only the certainty and predictability of a permanent standard can keep ATU members safe on the job and give riders confidence that they will be safe on transit, thereby enabling the recovery both of transit systems themselves and of the communities they serve.
Of course, the benefits of a permanent standard are not limited to ATU members. All Virginia workers are safer with effective Covid-19 protections in place – and when workers are safer, Virginia is safer. That is why the national AFL-CIO and its Virginia federation – which represents workers across employment sectors and across the Commonwealth – have also submitted comments in strong support of the proposed permanent standard. The ATU endorses these comments and urges the Board to adopt the improvements to the proposed permanent standard that the AFL-CIO proposes. 
In addition to the improvements set forth in the AFL-CIO comments, the following updates – tailored to transit workers’ needs – are also necessary to enable the permanent standard to provide comprehensive SARS-CoV-2 protection to ATU members and to all Virginia workers:
Establishment of confined space-specific air filtration standards – The proposed permanent standard recognizes the importance of enhanced air filtration to mitigating the spread of SARS-CoV-2 at medium-risk worksites, including transit agencies, by requiring employers at such sites to install air-handling systems that are consistent with certain guidelines developed by the American National Standards Institute (“ANSI”) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”). However, despite specifically designating transit worksites as medium-risk, the proposed permanent standard contains air filtration requirements designed only for buildings – not for transit vehicles and other confined areas. The ANSI and ASHRAE standards cited might be adequate for indoor spaces with substantial airflow and with ample space between workers, but they are insufficient for confined workspaces like buses, where workers spend extended periods in small, poorly-ventilated areas filled with an ever-shifting selection of members of the public – any one of whom could carry and spread SARS-CoV-2. Given the growing scientific consensus that SARS-CoV-2 spreads via airborne aerosols that people generate when they breathe and speak, it is clear that transit workers’ extended exposure to large numbers of potentially infected individuals increases the likelihood that they will contract Covid-19 – and correspondingly increases the necessity of filtration standards that are appropriate for confined spaces. In the transit context, such enhanced filtration should include a requirement for employers to equip vehicles with air filters with a minimum efficiency reporting value (a “MERV”) of thirteen or higher.
Introduction of fresh-air ventilation systems – The proposed permanent standard recognizes the importance of enhanced ventilation systems to mitigating the spread of SARS-CoV-2. In confined workspaces like transit vehicles, such systems must include fresh-air ventilation, which pumps outside air into the workspace and sends inside air out. Simply requiring employers to equip transit vehicles and other confined workspaces with openable windows is insufficient. To ensure the level of airflow necessary to disperse aerosols that might carry SARS-CoV-2, the permanent standard must require employers to install fresh-air ventilation systems that are appropriate for any confined workspaces under their control.
Inclusion of UV-C light requirement – Light bulbs emitting ultraviolet C (“UV-C”) waves are effective in killing SARS-CoV-2 when installed in building and vehicle ventilation systems. The permanent standard therefore should require an employer to install such bulbs at all worksites and in all workspaces, including vehicles, whenever the employer – in consultation with workers and their representatives – determines that they would mitigate the spread of the virus.
Strengthening of requirements for employers to install physical barriers – The proposed permanent standard recognizes the importance of physical barriers to protecting workers from others who might spread SARS-CoV-2. However, the standard’s call for employers at medium-risk worksites to install such barriers “[t]o the extent feasible…where such barriers will aid in mitigating the spread of SARS-CoV-2…” is insufficient. This is particularly true regarding confined workspaces like transit vehicles, where workers cannot maintain enough distance from others to protect themselves from potentially infectious aerosols. Instead, the standard must require an employer to consult with workers and their representatives when determining whether physical barriers would reduce SARS-CoV-2 spread at the worksite – and if that is indeed the case, the standard must require the employer to install such barriers unless the employer can prove that doing so would pose an undue financial burden. SARS-CoV-2 is too dangerous, and barriers are too important to mitigating that danger, for decisions regarding barriers to be left to the employer’s sole discretion. 
Reduction of transit vehicle capacities – One of the most effective ways to limit the airborne transmission of SARS-CoV-2 in a confined space where physical distancing is impossible – like a bus, rail car, or paratransit van –is to limit the number of passengers. Under the permanent standard, transit employers should be required to limit passenger loads to twenty-five percent of a vehicle’s capacity and to use a portion of the newly-available space to create a buffer zone between transit workers and passengers, where no passenger seating is permitted. 
Establishment of rear door boarding requirements for transit – When passengers board buses and certain rail cars using the front door, they pass so close to the vehicle operator that the operator cannot remain protected from potentially infectious aerosols. The permanent standard must therefore require transit employers to utilize rear door boarding for the duration of the SARS-CoV-2 pandemic except for those passengers with a bona fide need to utilize any accessibility equipment that might be connected to the front door. To the extent that rear door boarding might complicate an employer’s fare collection, the employer may implement off-board collection, install collection points near rear doors, or forego fares altogether. Certain transit employers across Virginia already have implemented these measures successfully, and the permanent standard should require the rest to follow suit. 
Introduction of vehicle “out of service” standards – Whenever a worker or a member of the public who has tested positive for Covid-19, who is suspected of being positive, who has been exposed to the virus, or who reasonably believes they have been exposed enters or uses a vehicle – including a transit vehicle – there is a substantial probability that the vehicle has been contaminated by SARS-CoV-2. To protect workers who are using or who might use a potentially contaminated vehicle, the permanent standard should require an employer to place such a vehicle out of service immediately upon discovering its potential contamination. Further, the standard must require the employer to fully ventilate the vehicle with fresh air and to fully clean and disinfect it before returning it to service. Given the high risk involved in such cleaning, the permanent standard must require an employer to provide PPE to workers completing the task that includes, as a minimum, N-95 masks, face shields, goggles, gloves, and protective gowns.
Inclusion of Customer mask/face covering requirement – As discussed above, there is a growing scientific consensus that SARS-CoV-2 spreads through airborne aerosol transmission. Most medical and scientific experts agree that individuals release substantially fewer aerosols while wearing masks or face coverings and that the consistent use of masks or face coverings in public is vital to reducing the spread of SARS-CoV-2. When a public space is also a worksite, as it is for ATU members and all other Virginia workers providing services to the public, the wearing of masks and face coverings becomes a worker protection matter. It likewise becomes a matter for permanent standard, which should obligate employers to require all members of the public entering a worksite to wear a mask or face covering unless doing so is impossible for bona fide medical reasons.
Establishment of N-95 mask guidance for medium-risk jobs – The fact that the proposed permanent standard classifies a given job – like transit operations – as medium-risk does not mean that workers are unlikely to contract Covid-19 at work. Instead, as detailed above, transit workers face elevated SARS-CoV-2 risks as a result of their extended exposure in confined spaces to potentially infected individuals. Most medical and scientific experts agree that an N-95 mask is among the best defenses to such exposure. The permanent standard should therefore require employers in medium-risk worksites to use every effort, including coordination with the Commonwealth in government-led purchasing efforts, to procure N-95 masks and to provide them to workers.  
Enhancement of protections to account for the airborne spread of SARS-CoV-2 – There is a growing scientific consensus that SARS-CoV-2 spreads through the air over distances greater than six feet. Therefore, the permanent standard should use a greater distance measurement when determining whether job tasks bring workers close enough to others to pose a hazard, when defining “physical distancing,” when deciding how far apart employers must keep their workers from others, and when making all other distance-based determinations. The permanent standard also should include worksite ventilation requirements that are more protective than those in the ETS to ensure that ventilation systems protect workers from aerosols emanating from areas more than six feet away.
Increase in opportunities for workers and their representatives to participate in hazard assessment and safety planning processes – Due to workers’ routine presence at their worksites and intimate familiarity with their jobs, workers and their representatives are best-positioned to understand worksite hazards and to propose solutions. Yet, the proposed permanent standard calls for the involvement of workers and their representatives in SARS-CoV-2 safety processes only to the extent of determining whether workers need PPE to protect themselves from SARS-CoV-2 in certain workplaces. The permanent standard should expand such consultations by providing for worker and representative involvement each and every time employers assess worksites for SARS-CoV-2 hazards and/or develop hazard-mitigation plans, and should contain robust enforcement provisions to ensure that employers are held accountable for engaging in substantive consultations.
Expansion of provisions for removing infected and potentially infected individuals from the worksite – The only way to ensure that a worker who has tested positive for Covid-19, who is suspected to be infected, who has been exposed, or who reasonably believes they have been exposed does not spread SARS-CoV-2 at a worksite is to allow the worker to stay home – without any loss of pay, benefits, or seniority – until the worker is no longer capable of transmitting the virus. Without these protections, infected or potentially infected workers must choose between earning a living and attending to their health and that of their community. This stark tradeoff creates an unacceptable risk that a worker will choose the certainty of maintaining their earnings over the uncertainty of potentially spreading SARS-CoV-2. This result becomes more likely the longer the pandemic-driven recession continues. However, the proposed permanent standard requires an employer to allow time away from work for only those workers who have tested positive for Covid-19 or who suspect that they have the disease. No such protections exist for workers who know they have been exposed to SARS-CoV-2 or who reasonably believe that to be the case. Equally concerning is the fact that the proposed permanent standard does not require employers to pay workers for time off due to Covid-19 concerns or to maintain their benefits or seniority. Under these circumstances, neither workers nor the public enjoys adequate protection from SARS-CoV-2. The Board must therefore expand the permanent standard to allow all infected and potentially infected workers to take consequence-free time off until they test negative and/or are symptom-free.
Clarification of employer’s contact tracing responsibility – Pursuant to the worker notification provisions in the proposed permanent standard, an employer must notify any workers who might have been exposed at the worksite to a coworker who has tested positive for Covid-19. The employer must provide the same notification to other employers whose employees were present at the worksite at the same time as the infected worker. Yet, the proposed standard states that employers need not engage in contact tracing regarding SARS-CoV-2 or Covid-19. These provisions are contradictory. An employer cannot determine who might have been exposed to an infected worker without determining who came into contact with and/or reasonably might have come into contact with that worker – that is, without conducting contact tracing. The notification provisions are essential, and the permanent standard’s contact tracing language must be consistent with them.
Enhancement of employer notification responsibilities – As discussed above, the proposed permanent standard requires an employer to notify any of its own workers who might have been exposed at the worksite to a coworker who has tested positive for Covid-19 and to provide the same notification to the employer of any other workers who might have been exposed. However, workers known to be positive for Covid-19 are not the only ones capable of spreading SARS-CoV-2; this group also includes workers suspected to be positive, workers who know they have been exposed to the virus, and workers who reasonably believe themselves to have been exposed. To maintain the health of workers and their communities, an employer must therefore collect reports of suspected positives, known exposures, and suspected exposures; determine which workers need to be notified of these reports; and make the necessary notifications. 
Clarification of employer cleaning responsibilities – The proposed permanent standard recognizes the importance of regular worksite cleaning and of providing workers with the materials necessary to keep their workspaces clean. For the prescribed cleaning regimens to be effective, however, workers must have time to clean, must be paid for that time, and must be protected both from the cleaning chemicals they use and from any SARS-CoV-2 virus that might be propelled into the air during cleaning. Therefore, the permanent standard should require employers to provide workers with paid time to clean the worksite at the end or beginning of each shift and should provide them with the PPE that workers, their representatives, and the employer determine to be appropriate for the relevant cleaning tasks.
The protections in the ETS have proven invaluable to ATU members in Virginia as they carry on their essential yet dangerous work during the Covid-19 pandemic. They are ever-mindful, however, of the temporary nature of these protections, and they wonder how they will keep themselves safe on the job after the ETS expires in January, in the midst of a widely anticipated resurgence in Covid-19 infections. Given that more than eighty ATU members have tragically succumbed to Covid-19, the stakes could not be higher.  
In the face of a virus that poses extraordinary and increasing dangers to Virginia workers, it is clear that now is not the time to allow the protections of the ETS to disappear; instead, the Board must act immediately to renew and strengthen them. Although some commenters might claim that the cost of the proposed protections is too great a burden on employers, the reality is just the opposite: By acting in accordance with an expanded version of the proposed permanent standard, employers have the opportunity to ensure the continued viability and success of their businesses by creating conditions under which their workers can survive, thrive, and continue the work that makes business possible. ATU members and all Virginia workers require comprehensive SARS-CoV-2 protection, and the continued viability of the Commonwealth’s economy depends on it. The ATU therefore urges the Board to adopt the proposed permanent standard, incorporating the essential modifications and additions listed above.
For further information, please contact ATU Associate General Counsel Laura Karr at or (240) 461-7199.


CommentID: 86401