September 25, 2020

Dear Members of the Virginia Safety and Health Codes Board:

On behalf of the Virginia small business members of the National Federation of Independent Business (NFIB), we are submitting the following comments related to your intent to adopt a Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220 (otherwise further to as “the Regulations”).   

Our organization represents approximately 6000 small businesses and 60,000 employees across a broad swath of industries from manufacturing, retail, restaurants, agricultural and forestry companies, healthcare, construction, to professional services. 

As we enter the 28^th week of Virginia’s State of Emergency related to containing the spread of COVID-19, Virginia’s many small business owners have faced intense stress as their businesses were ordered to close or operate in an extremely limited capacity.  The economic turmoil suffered by small businesses during the global pandemic has only somewhat abated as Virginia has gradually reopened.  Many small business owners have watched helplessly as their revenue slowed to a trickle or dried up entirely.  According to NFIB’s monthly Small Business Optimism Index, optimism has dropped and reports of expected better business conditions in the next six months have deteriorated. Owners continue to temper their expectations of future economic conditions as the COVID-19 public health crisis is expected to continue. 

Despite these challenging times, many small businesses adapted and implemented protocols to protect their employees and customers from exposure to the coronavirus by following the guidance issued from many federal and state government entities including the CDC, OSHA, and the Governor’s executive orders. Now Virginia small business owners are doing their best to comply with the Emergency Temporary Standard (ETS).  The last thing business owners need as they rebuild their businesses during this critical time is additional one-size-fits-all, static government regulations and red tape.

Virginia businesses need certainty and consistency in any regulatory program.  This ensures that the regulated community understands the requirements of the program, and that all parties can work together to satisfy the regulatory requirements. 

Therefore, NFIB requests the Virginia Safety and Health Codes Board rejects a Permanent Standard.  Adopting 16VAC25-220 as permanent regulations will be overly burdensome for small businesses. The science of COVID-19 is continuously being updated. Therefore, the CDC and OSHA guidelines are frequently updated to reflect this.  If the ETS were to become permanent, it would continue to require small businesses to comply with outdated regulations and would constrain employers from pursuing the adaptable, innovative, data-driven, and effective approach to protecting worker health and safety that is proving crucial during this pandemic. 

Now is not the time to impose a permanent standard. The ETS will not even be fully implemented until September 25 (the due date for these public comments) so small businesses have had no time to voice the challenges they’ve encountered implementing the ETS.  Nor has there been an effective evaluation of the ETS by DOLI on what impact the Regulations will have on small businesses in accordance with the Small Business Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act (SBREFA).

If the Board believes it should move forward with a Permanent Standard, it must include these important provisions:

1. The sunset clause from the ETS into the Permanent Standard so the Regulations will expire with the Governor’s State of Emergency

2. The specific recommendations from the Business Coalition to ensure the implementation and enforcement of any Permanent Standard is reasonable, fair, and attainable.  Here are several of NFIB’s priorities for amendments to any Permanent Standard and you can review all 36 recommendations in the Addendum NFIB is submitting to the Department for inclusion to our comments since they exceed the 3000 word limit.

• Amend § 10G to the agency’s original language with clarification on providing “safe harbor” for employers who follow CDC and OSHA guidance.  It is unclear who determines which version of CDC guidance an employer may reference for purposes of compliance.

• Eliminate requirements for physical separation of employees at low and medium risk businesses by a permanent, solid floor to ceiling wall.  Higher risk businesses have more flexibility to use smaller temporary barriers like Plexiglas sneeze guards.

• Eliminate all human resource policies from the Regulations such sick leave, telework, flexible worksites, flexible work hours, flexible meeting and travel, the delivery of services or the delivery of products.  These policies exceed the Board’s authority as it relates to workplace hazards. 

• Amend common space sanitation requirements.  Requiring common spaces to be cleaned and disinfected at the end of each shift” is impractical for 24/7 operations with multiple and overlapping shifts.  The Regulations should be amended to provide for a time-based alternative such as every 8, 12, or 24 hours exempting FDA regulated facilities.

• Eliminate HVAC requirements for medium risk businesses (16VAC25-220-60(B)).  Requiring retroactive compliance with a 2019 ASHRAE HVAC standard is premature at best.  Any permanent regulations should follow existing processes contained in the Virginia Uniform Statewide Building Code (USBC) which utilize appropriate industry investigation and recommendations.

• Eliminate the requirement that medium risk employers should complete a COVID-19 infections disease preparedness and response plan.  This mandate is overly burdensome and not necessary at this risk level.

• Increase the amount of time employers must train their employees. The current timetable is unachievable.  The ETS should be amended to provide employers another sixty (60) days to comply.

• Eliminate language protecting employees who report to news media or social media (16VAC25-220-90).  Whistleblower protection is intended to protect employee complaints to the responsible government regulatory agency. 

• Revise requirements related to transportation of employees who travel in the same vehicle.  This standard is impractical and vague. 

Further, NFIB requests the Virginia Safety and Health Codes Board issue an additional sixty (60) day comment period on 16VAC25-220 requesting that employers provide recommended improvements to the Emergency Temporary Standard for consideration by the Board.

NFIB strongly asks the Board NOT to approve any amendments to the Regulations that would incorporate other infectious diseases. There is no one-size-fits-all plan to combat a wide variety of infectious illnesses.

Conclusion

It is unreasonable to impose one-size-fits-all COVID-19 regulations on all employers when they reduce a business’ flexibility to quickly alter workplace procedures to remain safe during the ever-changing circumstances of this pandemic especially when each industry has its own needs.  By approving a Permanent Standard, the Commonwealth is freezing current scientific understanding into place which is unnecessary and poses more risk for our businesses and workers.

It is also profoundly inappropriate to bypass the formal regulation process altogether by attempting to codify guidance and Executive Orders as a reasonable replacement.  Further, it is confusing why the Regulations are being pursued when the Emergency Temporary Standard has not been fully implemented and has so many significant problems. 

Therefore, it is NFIB’s recommendation that the Board reject the regulations, establish a new sixty (60) day public comment period for a revised ETS or abandon the ETS entirely and rely upon the General Duty Clause and Federal, State, Industry guidance to protect workers as is being effectively done in 49 other states. 

While facing devastating economic conditions Virginia’s businesses continue to keep the safety and health of their employees as their top priority as they reopen and increase their business operations.  We hope the Board will see fit to give Virginia’s small businesses an opportunity to rebuild their businesses, restore their customer base and rehire their employees without imposing additional costly regulations.

Best Regards,

Nicole Riley, Virginia State Director