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Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
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9/24/20  4:52 pm
Commenter: Anonymous

Consider these amendments for the permanent standard

Repeal 16 VAC 25-220-40.A.8.e.  It is unnecessarily burdensome on employers and DOLI.  If you cannot repeal then amend it with the addition of the following sentence.  “This reporting requirement only applies where the definition of work-relatedness under 1904.5 has been met.”  Furthermore, this reporting should not be required of employers where all employees/tasks are in the lower risk category.

Rename 16 VAC 25-220 and amend 16 VAC 25-220-10 so it covers more than one highly infectious airborne pathogen.  The permanent standard needs to cover such pathogens as M. tb, Legionella and H1N1.  These are all airborne infectious pathogens for which OSHA has engaged in enforcement actions in the past.  Either that or the permanent standard should cover “. . . pandemics declared by the WHO or its successor organization.”  In 2003, a novel coronavirus that caused Severe Acute Respiratory Syndrome (SARS) was identified.  Today we refer to that once ‘novel’ coronavirus as SARS-CoV-1 and its existence/prevalence became overshadowed by norovirus outbreaks, MERS outbreaks, the 2009 flu pandemic and now the COVID-19 pandemic.  By this time next year, there may be a SARS-CoV-3 that causes an illness worse than COVID-19.  This pathogen-specific standard will not apply to future pandemics or outbreaks caused by other pathogens.  Keep in mind that outbreaks of the flu caused by the same H1N1 virus that triggered the 2009 pandemic still occur today.

The permanent standard needs to anticipate the availability of a vaccine.  There may need to be a requirement that employers offer the vaccine to high and very high risk employees, similar to the HBV vaccine provision under the Bloodborne Pathogen standard.  If 70% of the employees in a particular location have immunity (either through vaccination or after recovering from the illness) can that workplace dispense with the wearing of masks or other requirements within the standard?  70% is a conservative estimate of the herd immunity threshold (HIT) for COVID-19.  If the standard is amended to cover other pathogens then instead of a number, the requirement should refer to the specific HIT for a disease.  The standard would also need to include a definition for HIT.

16 VAC 25-220-60.B.1.g. needs to be renumbered as 16 VAC 25-220-60.A.2.  Physical barriers are an engineering control not an administrative/work practice control.  Face coverings are also a type of physical barrier and not an administrative/work practice control.  Depending on the material, face coverings have varying percentages of permeability.  Regardless, even a partial barrier is still an engineering control that helps to contain the amount of contaminant that is released into the workplace from a presumptive source.  In addition, there are some grammatical errors in 16 VAC 25-220-60.B.1.

In lieu of the above, allow 16 VAC 25-220 to expire.  COVID-19 is not an occupational disease like Asbestosis, Byssinosis, Pneumosiderosis and CWP, just to name a few.  SARS-CoV-2 is not an occupational health hazard.  It is a public health hazard that has reached pandemic level.  Everyone has potential exposure regardless of his or her occupation.  The OSHA/VOSH standards need to be reserved for hazards that exist or are created by the work activity/location/process.  The public, not the workplace is the source of this hazard.  Most employees are just as likely if not more likely to be exposed to this pathogen when not at work.  Even those that are teleworking, because it is infeasible to enforce any provision of this standard inside someone’s place of residence.  It is infeasible to control others that reside with teleworkers.  Even health care workers who may have to take care of an ailing loved one at home, where they will not be required to wear PPE as they would at work, are more at risk outside of work.

CommentID: 85910