September 25, 2020

C. Ray Davenport
Commissioner
Department of Labor and Industry
Richmond, VA

Re:  16VAC25-220, Proposed Permanent Standard, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19

Commissioner Davenport,

Our organization places the wellbeing of our team members first and above all else, in all situations.

We have worked cooperatively with the Virginia Department of Health, as well as the Health Departments of several other states in which we are an essential manufacturer of food products.  We also have established a cooperative relationship with Virginia DOLI/VOSH while managing this global pandemic.

We have found, in all cases, in the states where we work, the people in these government agencies have the same goal as we do – protecting people at home, in the community and in the workplace.  We embrace the sharing of best practices to slow the spread of this pandemic, and without hesitation provide all of the protections we can in the workplace, complemented with a saturation of education to help our team members while at home and in the community.

Matters of public health are just that – matters of public health.  Tuberculosis outbreaks, the common cold, the flu, and pandemics – are within the jurisdiction, including enforcement of the Virginia Dept. of Health, as well as local supporting health agencies.

The original, and sustained intent of the OSH Act is to require employers to evaluate and mitigate risks in the workplace, to provide protections to their employees of those risks that are a result of the hazards of the work in the workplace.  The Act was not and is not intended for the employer to take a primary role in the accountability for spread of the common cold, the flu, or a global pandemic.  These are social health issues and should not leak into the DOLI window of regulations and enforcement as it is outside of their scope.

DOLI / VOSH SHOULD HAVE NO STANDARD FOR COVID 19, EITHER TEMPORARY OR PERMANENT AFFECTING THE MANUFACTURING SEGMENT

• It is not the original or sustained interpretation of the OSH Act to hold an employer accountable for illnesses that are not directly attributable to the conditions and work instructions within the workplace.  The intention of the OSH Act is to impose upon employers to provide a workplace free from safety hazards related to the work being performed, that are under control of the employer.
• This burden on employers – which is not present in surrounding states, if faced with a permanent standard, jeopardizes the level of competition for industry and jobs in the Commonwealth of Virginia. This can result in loss of industry and jobs – because it is overbearing and inconsistent with surrounding states.
• Development and subsequent promulgation of workplace safety standards by DOLI/VOSH is intended to have a process of checks, balances and science building a foundation beneath them.  What we know about the novel Covid virus and protections are unproven science and are evolving continuously.  There is not enough solid, proven information available to allow such a permanent standard to survive the necessary checks and balances.

DOLI / VOSH CAN PLAY AN IMPORTANT, VALUABLE ROLE IN SLOWING THE SPREAD AND CONTAINMENT OF THE PANDEMIC

• We believe that the intentions of the ETS and its proposed transition to a permanent standard are well-intended. However, it is inappropriate to create a permanent standard without the proper process flow. Properly channeling well intentions and resources through consulting / assistance channels could help create a better scenario.
• DOLI/VOSH has existing and successful Consultation Services.  These services are an asset and can be mobilized to assist employers slow the spread of the virus.  For example, The State of Wisconsin; The Industrial Hygiene technical resources for Wisconsin OSHA Outreach program are based out of the University of Wisconsin.  The State of Wisconsin has temporarily repurposed these resources to an additional level of separation from the OSHA compliance arm. In cooperation with the Wisconsin Dept of Health, the State is sending in teams of Industrial Hygienists, learning and sharing best practices throughout the State by visiting and consulting with manufacturing operations.  This is a clear commitment from the State of Wisconsin to truly try and help employers contribute to the slowing and containment of the spread without the discussion of enforcement.

IF THERE IS NO CHOICE BUT TO HAVE A TEMPORARY OR PERMANENT STANDARD

• The current ETS and potentially the permanent standards, the threshold for reporting Covid positive cases to VOSH is not properly developed.  It is static and does not respect the dynamics of a 15-employee workplace vs a 2,000-employee workplace.  The current, static representation of three positive exposures of employees at the worksite should be transitioned to an indexed, dynamic representation for reporting.  The State of California, to create an escalation threshold (SB-1159) uses 4% of the workforce. A more appropriate criteria would be 4 cases for employers with 0-100 employees, 4% of the workforce in a 30-day sampling window for employers with more than 100 employees at a site.
• If there is to be a permanent standard, there would need to be specific criteria regarding enforcement windows.  The standard should only be active during a period of pandemic as declared by the CDC and or VDH.
• The standard must have agility for modification to stay consistent with ongoing advances and learnings in detecting and controlling spread of the virus.  The currently ETS is already outdated to updated guidance from the CDC.

Sincerely,

Pat Strickland
Monogram Food Solutions
Vice President, Operations
Martinsville, VA