September 25, 2020
Re: “Department of Labor and Industry Announces Intent to Adopt a Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220”
To Whom it May Concern:
The Virginia AFL-CIO, a state federation of the national AFL-CIO, represents over 300,000 union members and their families. With over 300 affiliated local unions in the Commonwealth, unions represent workers in a broad range of industries including healthcare, first response, food processing, manufacturing, hospitality, construction, transportation, utilities, grocery and retail service, education, and others; in private and public sectors; in stationary and mobile workplaces. Our members work side-by-side millions of non-unionized workers.
The Virginia AFL-CIO commends the Commonwealth, through its Department of Labor and Industry and Safety and Health Codes Board, for being the first state to expeditiously and thoughtfully issue a strong, comprehensive emergency temporary standard (ETS) to protect workers from the SARS-CoV-2 virus and to promulgate a permanent standard. The response by the Virginia government to reduce the spread of COVID-19 by addressing workplace exposures in a permanent standard is groundbreaking and will continue to make Virginia a premier state because of its response to the COVID-19 pandemic. At least 144,433 Virginians have been infected and 3,136have died [The New York Times. Covid in the U.S.: Latest Map and Case Count. Updated Sep. 25, 2020, 5:24pm ET. Accessed Sep. 25, 2020, 8:30pm ET]. We urge the Safety and Health Codes Board to swiftly approve the proposed permanent standard with several recommended improvements and to remain vigilant in protecting working people in Virginia.
The permanent standard must be finalized and issued to protect working people.
Early in the pandemic, it was clear that the spread of COVID-19 would continue to be aggressive, workplace outbreaks were inextricably linked with community spread and preventive measures were needed in both workplaces and the community. The ETS is only effective for six months and will expire on January 27, 2021. Issuing a permanent standard to prevent workplace exposures is fundamental to continuing to mitigate the spread of COVID-19 in Virginia as our nation continues to struggle with the virus surge. While this programmatic standard is specific to COVID-19, it also is the foundation for addressing other infectious disease exposures in the workplace that lead to illness and death and prepares employers for future pandemics.
Even though overall COVID-19 outbreaks in Virginia have decreased over the past several months, there continue to be outbreaks in many sectors: Since August 1, there have been 97 outbreaks in long term care facilities, 70 in congregate settings, 19 in correctional facilities, 20 in health care facilities, and 57 in education settings, with more being reported daily. Outbreaks in education have not decreased; instead, 67% of the education outbreaks have occurred since August 1 [https://www.vdh.virginia.gov/coronavirus/coronavirus/covid-19-in-virginia-outbreaks/].
The rise in outbreaks within the education sector, right as schools reopen, shows how essential it is for the OSHA standard to cover all workplaces under its jurisdiction, without exemptions. To ensure there are no gaps in protections for any workers, the permanent standard must be promulgated expeditiously to cover all working people in Virginia.
The Virginia OSHA standard simplifies requirements for employers to protect workers from COVID-19.
A permanent COVID-19 standard increases the clarity for what employers must do to keep workers protected from COVID-19 on the job—for employers who must implement control measures and workers to know how their employers must protect them. The standard is issued and enforced by one agency, creating clear authority for who holds employers accountable for maintaining safe workplaces.
Guidelines that are less protective than the proposed standard and not enforceable continue to leave workers and their families and communities at very serious risk. Currently there are more than 100 different CDC guidance documents that change on a regular basis with no notification to the public or employers. Guidelines include piecemeal recommendations with no enforcement, so employers often implement some elements and not others, leaving workers without comprehensive and consistent protections.
The permanent VOSH COVID-19 standard would make the strong, comprehensive workplace protections in Virginia the floor level of protections, instead of the ceiling. Removing the current references in §16VAC25-220-10.G to the CDC guidelines and Department of Education guidelines avoids confusion and impractical options for employers. These provisions also create unnecessary complications for inspectors in evaluating employer compliance. It is much simpler for the Board to remove these provisions to ensure that employers have one reputable and clear source for requirements that improve working conditions and that workers have clarity in the actions their employer must take.
The proposed standard, or ETS, is a strong comprehensive standard based on current science and long-standing occupational safety and health practices.
The proposed standard was created by the Safety and Health Codes Board after public input and with occupational safety and health, public health, and industry expertise. The ETS approved by the board is a comprehensive standard using a programmatic approach to require employers to assess the hazards of SARS-Cov-2 in their workplaces and then, according to the risks identified in the hazard assessment, implement control measures using sound safety practices. The tiered risk classifications and programmatic approach allows employers to tailor their infection control plans to their workplace instead of being overly prescriptive.
The standard also includes requirements, in alignment with other programmatic OSHA standards such as bloodborne pathogens and respiratory protection, for commonsense control measures following the hierarchy of controls. The comprehensive approach in the standard is necessary to protect workers from all transmission routes of SARS-CoV-2: contact, large droplet, and small aerosol particles through the air. The science is overwhelming that the virus is airborne, that these small aerosol particles travel farther than six feet, and can linger in the air, which makes the virus more contagious, especially in certain settings. Evidence from major COVID-19 workplace outbreaks also supports the need for airborne transmission precautions: these major outbreaks have occurred where workers are densely packed with poor ventilation and only basic protections that might address contact and droplet transmission, but not airborne.
The key elements of the proposed standard are consistent with other OSHA programmatic standards and employers and workers are familiar with their structure and expectations. Some of the necessary standard elements that are key to protecting workers from COVID-19 include:
Hazard assessment. It is essential for all employers, with worker involvement, to assess the hazards in their workplace to determine what, if any, control measures should be implemented.This is a requirement in every OSHA standard and necessary for all employers. We support the proposed provision.
Infectious disease preparedness and response plan. Employers must address the risk of COVID-19 in their workplace by developing and implementing a plan that incorporates the engineering, administrative, work practice, and personal protective equipment controls necessary to address those risks. This standard provision allows the plan to be tailored to each individual workplace, can be as simple or in depth as necessary to address the extent of risks in a workplace and increases the reliability that the protections will be comprehensive and communicated to all necessary parties, especially in multi-employer worksites. It is the key provision to a programmatic standard and directly relies on the hazard assessment being performed. We support the proposed provision.
Reporting and notification. It is essential for all known COVID-19 cases in the workplace to be properly communicated to the necessary parties for workers to make informed decisions about their and their families’ health, to facilitate prompt follow-up and contact tracing for positive cases, and to identify and investigate potential outbreaks. This provision is the only requirement for cases and outbreaks of infections to be systematically reported by employers. Without this provision, there are no requirements in Virginia that collect employment and case data. We support the proposed provisions, but encourage the Board to adopt the recommended change to the outbreak definition discussed below.
Removal of persons who are known or suspected to be infected. The proposed standard includes provisions we support to ensure that no known or suspected persons remain on the work site. This is essential to prevent spread of the virus in the workplace. However, we encourage the Board to consider expanding those who cannot remain on the worksite to those who have a known exposure to COVID-19 to reduce the risk of asymptomatic and presymptomatic transmission. These critical public health measures must include additional protections for workers who must be removed from the worksite to prevent the virus spread. These recommendations are further discussed below.
Return to work. The proposed standard includes return to work provisions that are in line with preventive recommendations from the CDC. However, CDC guidelines are constantly changing with no notification to the public and due to business demands instead of new virus or disease information. The proposed return to work provisions ensure that no one known or suspected to be infected with SARS-Cov-2 is in the workplace continuing to spread the virus to others. The return to work provisions also include sick leave provisions which need to be maintained in order to keep infected workers out of the worksite and encourage reporting of cases. Workers without sick leave are at an economic disadvantage to remain out of the workplace when required by the standard to protect their coworkers and community. This provision is especially important as the current proposed standard has no additional requirements to protect workers from retaliation if they become or are suspected to be infected or to encourage workers to remain at home when potentially contagious.
Training. Training is essential to ensure that all workers understand the risks associated with exposure to the SARS-CoV-2 virus and COVID-19 cases in their workplace, the measures their employers are taking to protect them, and the tools and protections they need to safely perform their job tasks. The proposed tiered approach ensures all workers receive information commensurate with their workplace setting. We support these provisions.
Ventilation requirements. We strongly support the specific ventilation provisions in the proposed standard as SARS-CoV-2 is an airborne transmissible virus and the proper ventilation and supply of fresh air is essential to reducing spread indoors.
Respiratory protection. The proposed standard clearly defines respiratory protection and requires the appropriate assessment to determine the level of protection needed, as well as specifies appropriate respiratory protection for higher risk settings such as health care. We support these provisions.
Face coverings. The proposed standard clearly defines face coverings, their limitations and their purpose to reduce the spread of droplet particles from the wearer. We support the proposed requirements for the use of face coverings by the public and workers who do not need respiratory protection based on the hazard assessment.
We encourage the Board to improve the proposed standard in the following areas.
As explained above, section §16VAC25-220-10.G must be removed as the allowance of compliance with CDC guidance or the Department of Education guidance creates confusion and it is much simpler for everyone to follow one comprehensive OSHA standard.
The scientific evidence that the virus causing COVID-19 primarily spreads through airborne transmission is overwhelming and well-recognized by the scientific community and in the proposed standard. Airborne viruses travel farther in the air than six feet, and the six-feet guideline is based on the estimated distance large droplets travel and not aerosolized virus particles. However, the proposed standard consistently refers to six-feet when physical distancing. Physical distancing should occur at the maximum distance possible, at a minimum of six feet, and be implemented in combination with other control measures for airborne transmission, including ventilation, reduction of persons in one area, reduced time spent in areas, and respirators when deemed necessary by the hazard assessment.
Medical removal requirements for those who have been exposed to SARS-CoV-2, or recommended by a medical or public health professional, must be added to the proposed standard. One of the most important control measures is to prevent known or exposed workers from entering the workplace. The proposed standard recognizes this by including the provision that does not allow employers to permit employees or other persons known or suspected to be infected with the virus to remain on the premises. See §16VAC25-220-40.A.5. It is logical to assume that workers with a known exposure to the virus may be infected with the virus and should also not be allowed on the premises until cleared for work. The final standard should include these individuals in the medical removal provisions to reduce the risk of asymptomatic and pre-symptomatic transmission. For workers who cannot report to work due to COVID-19 illness or exposure, the employer should provide up to two weeks of paid reassignment or sick leave in addition to whatever benefits to which the worker would otherwise be entitled. Additionally, all workers who are not allowed on the premises under the standard, must be protected from any retaliation or loss of benefits. The standard must require that employers maintain the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal until cleared for return to work. These protections encourage workers, who otherwise would be afraid of retaliation, to report known exposures. These provisions are common in OSHA standards where continued presence at work can result in additional harm to the worker or, as in the case of COVID-19, coworkers, including in OSHA’s lead, formaldehyde, benzene, methylenedianiline, cadmium, methylene chloride, and beryllium standards.
The proposed standard includes necessary reporting and notification requirements to VOSH when there is a workplace outbreak. To be consistent with the state’s definition, we recommend an update to the “outbreak” definition from “three or more employees present at the place of employment within a 14-day period testing positive for SARS-CoV-2 virus during that 14-day time period” to “two or more employees” within the same time frame [https://www.vdh.virginia.gov/coronavirus/coronavirus/covid-19-in-virginia-outbreaks/]. This change would also be in alignment with current outbreak definition from the Council of State and Territorial Epidemiologists [https://cdn.ymaws.com/www.cste.org/resource/resmgr/ps/positionstatement2020/Interim-20-ID-02_COVID-19.pdf].
While the proposed standard includes strong language for employers to include workers and worker representatives in the hazard assessment and development and review of the infection control plan, in practice, employers often fail to involve workers and their representatives in these processes. VOSH should ensure that both employers and workers are fully aware of the standard provisions through their educational materials and enforcement directives.
Arguments that a permanent standard is burdensome are unfounded.
OSHA has a longstanding history of helping employers with compliance and enforcement discretion with employers who are making good faith efforts. In the public Safety and Health Codes Board meetings, VOSH made clear their intention to educate employers about the standard’s requirements. We encourage the agency to issue a clear and comprehensive enforcement directive and any helpful guidance to ensure employers understand the requirements under the standard.
Finalizing a standard that utilizes the proposed programmatic approach not only protects workers where there is risk of exposure to SARS-CoV-2, but reduces the requirements for employers when there is less risk. The proposed standard requires employers to perform a hazard assessment to first determine the risk and then implement strategies to control the risk. When there is no risk, for example, in the event that the virus is no longer a hazard in the workplace due to an effective vaccine or another reason, an employer would no longer have a hazard to control and no further requirements of the standard would apply. This scope and applicability is the structure of all OSHA standards. For example, the OSHA lead standard only applies to employers that perform job tasks where there is lead present as a workplace hazard.
Virginia is the leader in requiring strong OSHA protections during the COVID-19 pandemic: it was the first state to issue an emergency temporary standard and is the first moving forward with the necessary permanent standard. The proposed standard, or ETS, is a strong comprehensive standard that is based soundly on current science and longstanding occupational safety and health practices and is saving lives. Virginia will be a model for employers to prepare for future pandemics. We strongly recommend that the Virginia Safety and Health Codes Board expeditiously finalize and make the ETS a permanent standard with several improvements.
Virginia AFL-CIO, President
Rebecca L. Reindel, MS, MPH
AFL-CIO, Safety and Health Director
MK Fletcher, MSPH
AFL-CIO, Safety and Health Specialist