The Construction Industry Safety Coalition (“CISC”) respectfully submits these comments to the Virginia Department of Labor and Industry’s (“DOLI”) recommended Emergency Temporary Standard/Emergency Regulation, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (collectively, the “Recommended Standard” or “Standard”).
The CISC is comprised of 26 trade associations representing virtually every aspect of the construction industry. The CISC was formed several years ago to provide thoughtful, data-driven comments to regulatory agencies on rulemaking initiatives. The CISC speaks for small, medium, and large contractors; general contractors; subcontractors; union contractors; etc.
As set forth below, the CISC has concerns with the Recommended Standard. The Standard includes a wide range of mandates that would be broadly applicable to all industries. The CISC does not believe that evidence supports application of such a wide range of requirements to the construction industry, which has already taken strides to address COVID-19. The Standard also does not account for the unique nature of construction work and, as a result, we believe will not be effective in construction in minimizing the risk of COVID-19. The Recommended Standard also does not take into account the changing public health recommendations of the Centers for Disease Control and Prevention (“CDC”) and other public health agencies, essentially setting requirements “in stone” and not allowing for flexibility of compliance. Finally, the extensive requirements go well beyond the mandate for the rule established by Governor Northam and would include provisions that are not at all necessary to address the virus. The CISC requests that DOLI re-think its approach to the Recommended Standard to ensure that employers and employees are protected and that the rule can be effectively implemented.
I. Background.
The Department of Labor and Industry has put forward the Recommended Standard, in fulfillment of Governor Northam’s revised Executive Order 631 (“EO”), which states in pertinent part:
The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health program …. These regulations and standards must address personal protective equipment, respiratory protective equipment, and sanitation, access to employee exposure and medical records and hazard communication.
The Recommended Standard sets forth a comprehensive – and burdensome – approach to addressing COVID-19 applicable to all employers throughout the Commonwealth. It establishes baseline requirements for employers in all industries. It also categorizes jobs into risk categories and places additional requirements on employers with job tasks identified as “very high,” “high,” and “medium” risk. All employers must perform a hazard assessment, develop notification requirements, and otherwise implement policies for managing employees who may test positive for COVID-19. There are also provisions requiring employers to develop “flexible” sick leave policies. Specific provisions are mandated for all employers regarding physical distancing, as well as maintaining common areas and breakrooms. Cleaning and disinfecting procedures are also required. Finally, PPE is required for employees to the extent there is an exposure risk not adequately controlled by engineering or administrative controls.
For jobs classified as “very high” or “high” exposure, the Recommended Standard includes a number of additional requirements. This includes a litany of specific engineering and administrative control requirements, geared largely to the healthcare industry. “Medium” exposure jobs are similarly heavily regulated. Air handling system controls and physical barriers must be implemented where feasible. To the extent feasible, employers with “medium” risk jobs must also implement administrative and work practice controls, including:
“Medium” exposure hazards or job tasks in the Recommended Standard are those not otherwise classified as “very high” or “high” exposure risk in places of employment that require more than minimal occupational contact inside six feet with other employees, other persons, or the general public who may be infected with SARS-CoV-2, but who are not known or suspected to have COVID-19. According to the Recommended Standard, “medium” exposure risk hazards or job tasks may include:
Poultry, meat, and seafood processing; agricultural and hand labor; commercial transportation of passengers by air, land, and water; on campus educational settings in schools, colleges, and universities; daycare and afterschool settings; restaurants and bars; grocery stores, convenience stores, and food banks; drug stores and pharmacies; manufacturing settings, indoor and outdoor construction settings ….
The Recommended Standard is an unprecedented combination of general programmatic requirements, specific prescriptive mandates, and a litany of “Human Resources” provisions never previously included in any federal Occupational Safety and Health Administration (“OSHA”) or VOSH standard. Moreover, this combination of requirements is applied across the board in virtually all industries. Putting aside the additional requirements placed upon “very high,” “high,” and “medium” hazard jobs, work environments ranging from Commonwealth office buildings, to dentist offices, to meat processing facilities, and to construction sites, will all be required to implement the same standard, even though the risks and hazards in these industries are all very different.
II. Procedural Objections.
As an initial matter, the CISC objects to the process used to promulgate the Recommended Standard. The COVID-19 pandemic is an unprecedented public health emergency. Notwithstanding this, the process being used here does not provide the public an adequate opportunity to comment on the Recommended Standard and to otherwise participate in the rulemaking process.
The DOLI is providing affected stakeholders just a few days to review the Recommended Standard and develop written comments. Comments will be reviewed shortly thereafter and stakeholders will be prevented from speaking at the subsequent Board consideration of the Standard. This truncated process deprives affected employers and employees of an opportunity to fully consider the Standard and provide feedback on it. As a result, it also deprives DOLI of important information it needs to develop a rule that can be effectively implemented across all industries in the Commonwealth.
The CISC strongly recommends that DOLI re-think the process and provide additional opportunities for affected stakeholders to comment and participate. This does not mean that DOLI should take several months or years to promulgate an ETS. But, DOLI needs to provide more than 10 days for stakeholders to provide comment and should provide stakeholders an opportunity to speak directly on the necessity of the standard provisions in all of the industries affected.
III. There is No Evidence Supporting Application of the Broad “Recommended Standard” to the Construction Industry.
As set forth above, the Recommended Standard involves an extremely broad approach to addressing COVID-19 in the Commonwealth. The CISC understands the historic nature of this pandemic and the toll that it has taken on the country. The construction industry has mobilized in a significant way to protect employees during this time, particularly since many construction employees have been deemed essential during the pandemic. Notwithstanding this, the large number of cases across the country and in the Commonwealth does not support requiring the type of broad regulatory approach recommended here.
The ongoing COVID-19 pandemic is a unique situation involving a highly contagious virus with exposures inside and outside of the workplace. The significant numbers of cases demonstrate a large public health problem, but not one necessarily driven by the work environment, and certainly not all work environments in all industries. Much of the evidence supporting the Recommended Standard specifically relates to certain front-line industries, such as healthcare. Evidence alleging high exposures in certain industries does not support the need for such a broad standard applicable to all industries.
The CISC understands that the EO requiring the DOLI to issue an ETS specifically mandates an ETS applicable to all employers. The EO, however, does not mandate that the ETS apply the same requirements across all industries. Because the evidence of risk varies across all industries, the regulatory burden should also reflect that. (The CISC also notes that recently the United States Court of Appeals for the District of Columbia Circuit rejected a petition filed by the AFL-CIO seeking that court to order OSHA to issue an ETS for infectious disease.)
IV. The Recommended Standard Fails to Recognize the Unique Aspects of the Construction Industry.
Construction work is very different from general industry work. Construction work is frequently performed outside, in ever-changing conditions and varied work environments. A construction project can span for miles with work being performed at various stages along the span. In the context of certain OSHA rulemakings, the unique nature of construction work has been highlighted and has been a driving factor in OSHA’s approach to addressing hazards. Most recently, OSHA promulgated a comprehensive standard regulating exposure to respirable crystalline silica in general industry, maritime, and construction workplaces. Recognizing the unique nature of construction work and the significant differences between general industry environments and construction environments, OSHA adopted separate standards for general industry and construction with completely different approaches to addressing the hazards posed.
The Recommended Standard essentially requires the same approach across all industries. The approach does not consider the differences between various industries and the unique aspect of the construction environment. For example, to the extent construction work is considered “medium” risk, the Recommended Standard would require implementation of a series of controls not suited to construction. The Recommended Standard discusses such measures as changes to air handling systems and erection of physical barriers, measures common in general industry worksites – but not construction. It also discusses actions such as markings on floors and curbside delivery that are inapplicable in many construction environments.
V. The Approach in the Recommended Standard will Not Work in the Construction Industry.
The broad “combination” approach in the Recommended Standard will not work in the unique construction environment. To the extent that DOLI must go forward with a regulatory approach to COVID-19, the CISC recommends that – for construction – any approach be modeled after the CISC’s COVID-19 Prevention, Preparedness, and Response Plan (“Response Plan”), which was developed for the broad use of construction contractors throughout the country. The plan has been implemented throughout the industry and adopted by large and small contractors. The Response Plan was initially issued in March 2020, and subsequently updated in late April 2020. See CISC Response Plan, (April 22, 2020), http://www.buildingsafely.org/wp-content/uploads/2020/04/CISC-COVID-19-Exposure-Prevention-Preparedness-and-Response-Plan-Version-2-4838-8641-5802-3.docx.
The effectiveness of the Response Plan has already been recognized by several jurisdictions. In fact, on March 29, 2020, the County of Dallas, Texas issued rules for the construction industry on how to prevent worker exposure to COVID-19. See Stay Home Stay Safe: Rules for the Construction Industry, (March 29, 2020), https://www.dallascounty. org/Assets/uploads/docs/covid-19/orders-media/032920-Order-Rulesfor theConstructionIndustry.pdf. These rules required “all employers involved in construction activity [to] follow the requirements set forth in the COVID-19 Safety Recommendations issued by the Construction Industry Safety Coalition.”
The CISC Response Plan is specifically geared to construction work, unlike the Recommended Standard, which is so broad as to be unworkable in the construction industry. To the extent DOLI goes forward with a regulatory approach to COVID-19 in construction, it must fundamentally re-evaluate how it considers construction.
VI. The Recommended Standard is Prescriptive and Would Not Provide for Changes in Public Health Guidance Related to COVID-19.
COVID-19 is commonly referred to as a “novel” coronavirus. That is true in a number of respects. What public health authorities know about the virus changes on an almost daily basis. The public health community is rigorously studying COVID-19 and, despite this, its understanding of the risks and health effects is constantly changing.
As just one example, the CDC has changed its list of symptoms associated with COVID-19 at least five times. Initially, in early March 2020, the CDC stated that fever, cough, and shortness of breath are symptoms of COVID-19 illness. Watch for symptoms, CDC, (March 14, 2020), https://web.archive.org/web/20200314183946/https://www.cdc.gov/corona virus/2019-ncov/symptoms-testing/symptoms.html. However, on April 18, 2020, the CDC added six new symptoms (chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell) and added “difficulty breathing” to its original “shortness of breath” symptom. Id. (April 18, 2020), https://web.archive.org/web/20200418024620/https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. Ten days later, on April 28, 2020, the CDC revised its symptoms list again, this time elevating cough and shortness of breath or difficulty breathing as primary symptoms and grouping the other symptoms separately. Id. (April 28, 2020), https://web.archive.org/web/2020 0428021329/https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/ symptoms.html. Another ten days later, on May 8, 2020, the CDC removed repeated shaking with chills and headache from its list of symptoms and regrouped the remaining symptoms together. Id. (May 8, 2020), https://web.archive.org/ web/20200508101158/https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html. And on May 13, 2020, the CDC indicated that additional “less common symptoms have been reported, including gastrointestinal symptoms like nausea, vomiting, or diarrhea.” Id. (May 13, 2020), https://web. archive.org/web/20200513154857/https://www.cdc.gov/coronavirus/2019-ncov/ symptoms-testing/symptoms.html. Finally, on May 26, 2020, the CDC again changed its list of symptoms by adding fatigue, muscle or body aches, congestion or runny nose, and nausea or vomiting, and re-added headache. Id. (last visited May 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/ symptoms.html.
The Recommended Standard does not account for the novel nature of the virus and the constantly changing public health knowledge. In fact, the Recommended Standard would “set in stone” certain protocols that are now accepted by public health authorities, but could later be changed. For example, the Recommended Standard provides that:
These mandates are based on current public health recommendations for how the virus is transmitted, what symptoms develop, etc. That is appropriate as of June 22, 2020. The recommendations could easily change, however. The way the Recommended Standard is drafted does not account for any potential changes. Instead, it sets an inflexible approach that all contractors will need to follow for the weeks and months ahead.
VII. Requirements Related to Notification, Leave, ADA and Other “Human Resources” Issues are Not Reasonably Necessary and Appropriate.
The Recommended Standard includes numerous provisions never previously included in any federal OSHA or VOSH standard. Rather than simply establishing requirements to address the health hazard in the workplace, consistent with every other VOSH standard, the Recommended Standard includes mandates related to leave and other “Human Resources” issues. For example, the Recommended Standard requires:
There is no evidence that these provisions are reasonably necessary and appropriate to address the hazard of COVID-19 and certainly have not been included in any comparable VOSH standard. They appear to be more of a “wish list” of various measures that stakeholders think might be good to include in a mandatory rule.
This is particularly concerning given the language of the EO itself. The CISC notes that the EO actually calls for DOLI to issue a very limited standard, focused on the following five areas: personal protective equipment, respiratory protective equipment, and sanitation, access to employee exposure and medical records and hazard communication. DOLI has taken that limited mandate and expanded it exponentially, requiring a smorgasbord of various requirements and mandates never before seen. This is wholly inappropriate and will result in a standard that is cumbersome and not effective at protecting employees.
VIII. Conclusion.
The CISC appreciates DOLI’s consideration of these comments. The CISC cautions the agency against pursuing the Recommended Standard, as it is currently drafted. The CISC respectfully requests that DOLI re-examine its approach to the issue as it applies to construction, and is willing to work with the agency as it reconsiders how to address COVID-19.