Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
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3/17/22  4:08 pm
Commenter: Amalgamated Transit Union

Maintain the Standard to Protect Virginia Workers



16 VAC 25-220


Proposed Final Revocation of the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19


Comments by the

Amalgamated Transit Union


International President John Costa


            The Amalgamated Transit Union (ATU) submits the following Comments regarding the proposed final revocation of the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19 (the Standard), which is under consideration by the Virginia Safety and Health Codes Board (the Board). As the labor union representing over 2,200 bus, rail, and paratransit workers employed throughout Virginia, the ATU comes before the Board on their behalf, urging the Board to keep the Standard in place in order to maintain for transit workers – and all working Virginians – the essential protections they need as COVID-19 continues to be a deadly presence in the Commonwealth’s workplaces.


The ATU strongly opposes revocation of 16 VAC 25-220, which would leave workers unacceptably vulnerable to a virus that still endangers them at work.


            The SARS CoV-2 virus qualifies easily as a hazard warranting Board action. The Board is empowered to adopt – and maintain – whatever feasible and evidence-based standards are necessary to ensure that no worker “will suffer material impairment of health or functional capacity.”[1] A “material impairment” is one of “real importance or great consequence.”[2] Meanwhile, the Board’s own most recent briefing package list fever, cough, fatigue, shortness of breath, pain (including chest pain), loss of taste or smell, and confusion among the signs and symptoms of COVID-19.[3] Long-term complications from the disease can include organ failure, heart conditions, acute respiratory distress, and blood clots.[4] Plainly, these outcomes constitute important and consequential threats to workers’ health and physical function such that the Board is justified in protecting workers from COVID-19.


            The aforementioned health impairments also might support the conclusion that COVID-19 is a grave danger to Virginia workers. This finding, however, is not required for the Board to maintain the Standard. Only when issuing an emergency temporary standard – not a permanent standard like the one under consideration now – must the Board determine that workers “are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards…”[5] Therefore, the Board’s preliminary finding that, allegedly, COVID-19 “no longer poses a ‘grave danger’…” is irrelevant to the pending decision of whether to maintain the Standard. The Board is not bound by its prior conclusion about grave danger or lack thereof, and that conclusion should play no role in the Board’s decision about the Standard’s future.[6]


            Moreover, the “real” and “great” health threats posed by COVID-19 continue to be substantial hazards for Virginia workers. Consider the following, as noted in the Briefing Package:


  • “[M]ost experts think that [Omicron] won’t be the final variant of concern. There are two likely scenarios going forward…One is that Omicron continues to evolve, creating some sort of Omicron-plus variant that is worse…The other possibility is that a new, unrelated variant appears.”[7]


  • “NERVTAG [The New and Emerging Respiratory Virus Threats Advisory Group] thinks Omicron's mildness is likely pure chance and the next one is likely to be more severe again… It is…not true that variants are becoming milder. Delta was more severe than Alpha which was more severe than the original [virus]. Omicron is milder than Delta but likely not milder than original [virus]... and it’s not part of a steady progression to mildness.”[8]


Further, there are signs that SARS-CoV-2 cases are likely to increase in Virginia soon. “Scientists who monitor Centers for Disease Control and Prevention (CDC) wastewater testing data are raising concerns about potential case rises in parts of the United States.”[9] Increases in SARS CoV-2 levels in wastewater are concentrated in areas including “Middle Atlantic states,” which reasonably would include Virginia.[10] Such increases presage rising COVID-19 cases – and as long as COVID-19 is prevalent, so are its associated threats to Virginia workers. Similarly, many COVID-19 experts expect that rising levels of the BA.2 variant (a subvariant of Omicron) in Europe indicate that the United States is likely to experience a new surge in infections in the coming weeks.[11]


Importantly, Virginia workers face the hazards of COVID-19 not as members of the general public – all of whom live with some threat of the disease – but as individuals incurring elevated risks on account of their employment. As stated in the Briefing Package, as of March 14, 2022, 71.4% of Virginia’s COVID-19 cases, 59.4% of Virginia’s COVID-19 hospitalizations, and 32.8% of Virginia’s COVID-19 deaths occurred in the Commonwealth’s working-age population.[12] While in most cases, it is impossible to determine with certainty where a COVID-19 patient was exposed to SARS CoV-2, the health disparities between working Virginians and others are too stark to be coincidental. Instead, they are due to the fact that most Virginia workers’ livelihoods depend on them congregating together for work, creating environments in which SARS CoV-2 spreads easily and with devastating effects.


Public health experts and researchers confirm the connection between workforce participation and the risk of developing COVID-19:


  • One of the reasons that Black and Hispanic individuals suffer higher rates of COVID-19 than members of other racial groups do is because they are overrepresented in occupations that subject workers to the highest SARS CoV-2 exposure risks.[13]


  • In California, work in an essential job – including transportation and logistics – is associated with an increased chance of developing COVID-19 and an increased chance of death.[14] There is no reason to believe that this is not the case in Virginia.


  • In Massachusetts, workers in certain occupations – including transportation – have higher COVID-19 death rates than other workers do.[15] This result is likely due to higher incidence of workplace exposure to SARS CoV-2. Again, there is no reason to believe that these findings would be invalid in Virginia.


  • In New York, transit workers in public-facing jobs have greater SARS CoV-2 exposure and COVID-19 infection risks than members of the general public do. This appears to be a result of these workers’ enhanced occupational exposure to members of the public. As a result, workplace infection mitigation plans are necessary to protect the transit workforce.[16] Virginia transit workers are exposed to these same hazards.


Fortunately, the Standard mitigates these risks effectively. As of March 14, 2022, Virginia had the seventh lowest COVID-19 case rate of all U.S. states.[17] At this time, when COVID-19 cases are declining and workers are reaping the benefits of the Standard’s protections – which are nearly unequaled in the United States – there is no reasonable basis for revoking the Standard. The Board cannot allow it to become a victim of its own success, nor can the Board itself fall victim to ever-shifting political expediencies. To revoke the Standard would be to deprive Virginia workers of the protections on which they depend to preserve both their lives and their livelihoods. It would, further, represent an unconscionable abdication of the Board’s responsibility to maintain the regulatory conditions necessary for Virginia workers to stay healthy and safe on the job.


            Even if COVID-19 were endemic in Virginia – a question regarding which there is no expert consensus – it would be necessary and appropriate for the Board to leave the Standard in place.[18] A disease is endemic when case numbers are stable within a population over a long period of time.[19] Endemic COVID-19, therefore, would be analogous to other persistent workplace hazards in Virginia. These include the dangers of using aerial devices and cutting equipment in tree trimming, operating motorized construction equipment in reverse, and working in confined spaces within the telecommunications industry, to name just a small proportion of the relevant examples. None of these hazards is likely to disappear from Virginia workplaces in the foreseeable future. Yet, in each case, the Board has understood its responsibilities to encompass the promulgation of Virginia-specific regulations regarding these matters. In no such case has the Board cited the persistence of a hazard as a reason not to maintain corresponding protections for workers.[20] There is no reasonable basis for applying a different approach to COVID-19. The Board, therefore, must leave the Standard in place as an essential protection against a hazard that is likely always to be present in Virginia workplaces.


            The ATU appreciates the opportunity to comment on the proposed final revocation of the Standard – supplementing our comments on this rule from October 2020, January 2021, and July 2021 – and we thank the Board for its consideration. For further information regarding the matters discussed herein, please contact ATU Associate General Counsel Laura Karr at or (240) 461-7199.

[1] Va. Code Ann. § 40.1-22(5).


[2] Bell v. Dorsey Elec. Co., 448 S.E.2d 622, 624 (Va. 1994) (quoting Webster’s Third New International Dictionary 1392 (1981)).


[3] Virginia Department of Labor and Industry, Virginia Safety and Health Codes Board, Briefing Package for March 21, 2022 (hereinafter Briefing Package) at 32-33.


[4] Id. at 34.

[5] Va. Code Ann. § 40.1-22(6a).


[6] See Briefing Package at 132 (rejecting “grave danger” as a threshold finding necessary to support the Board’s adoption of a permanent standard according to the procedures set forth in the Virginia Administrative Process Act (internal citation omitted)); see also id. at 14 (explaining that the steps taken by the Board to adopt the Standard “mirror[ed], to the extent possible within the compressed six month timeline for adoption, Virginia Administrative Process Act (APA) procedures”).


[7] Id. at 21 (internal citation omitted).


[8] Id. at 108-09 (internal citation omitted).

[9] Lisa Schnirring, “China's COVID-19 cases double as other nations eye resurgences,” Univ. of Minn. Ctr. for Infectious Disease Research & Policy March 15, 2022 (


[10] Id.


[11] Lenny Bernstein & Joel Achenbach, “A covid surge in Western Europe has U.S. bracing for another wave,” Washington Post March 16, 2022 (


[12] Briefing Package at 59-60.


[13] Abay Asfaw, “Racial Disparity in Potential Occupational Exposure to COVID-19,” Journal of Racial and Ethnic Health Disparities Aug. 5, 2021 (


[14] Yea-Hung Chen et al., “COVID-19 mortality and excess mortality among working-age Californians, by occupational sector: March 2020 through November 2021, medRxiv Feb. 15, 2022 (; Kristin J. Cummings et al., “Disparities in COVID-19 Fatalities among Working Californians,” medRxiv Nov. 11, 2021 (


[15] Devan Hawkins et al., “COVID?19 deaths by occupation, Massachusetts, March 1–July 31, 2020,” 64 American Journal of Industrial Medicine 4 at 238-44 (April 2021) (


[16] Suzanne E. Tomasi et al., “COVID?19 mortality among Amalgamated Transit Union (ATU) and Transport Workers Union (TWU) workers—March–July 2020, New York City metro area,” 64 American Journal of Industrial Medicine 9 at 723-30 (Sept. 2021) (


[17] Briefing Package at 65, 90 (internal citations omitted).


[18] See id. at 31-32 (quoting public health and biosecurity experts who explain that COVID-19 will remain epidemic, not endemic, due to the speed at which case numbers fluctuate).


[19] Id.


[20] 16 VAC 25-70-10 et seq.; 16 VAC 25-73-10 et seq.; 16 VAC 25-97-10 et seq.

CommentID: 120806