March 19, 2022
Regulatory Coordinator Virginia Department of Labor and Industry
Main Street Centre
600 East Main Street, Suite 207
Richmond, VA 23219
Re: Comments of the Construction Industry Safety Coalition
Proposed Revocation of the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220
The Construction Industry Safety Coalition (“CISC”) respectfully submits these comments to the Virginia Department of Labor and Industry’s (“DOLI”) Proposed Revocation of the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220 (“Standard”).
These comments support the Virginia Safety and Health Codes Board decision to adopt a proposed revocation of its COVID-19 Standard, 16VAC25-220 based on emerging scientific and medical evidence that the current widespread variants of the virus no longer constitute a grave danger to employees in the workplace under Va. Code §40.1-22(6a), and as discussed in the U.S. Supreme Court’s decision in National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ___ (2022).
The CISC is comprised of national trade associations representing virtually every aspect of the construction industry, of which many reside and work in Virginia. The CISC was formed in 2013 to provide data and information to Federal OSHA on regulatory, interpretive, and policy initiatives. The CISC speaks for small, medium, and large contractors, general contractors, subcontractors, and union contractors alike. The CISC represents all sectors of the construction industry, including commercial building, heavy industrial production, home building, road repair, specialty trade contractors, construction equipment manufacturers, and material suppliers.
From the outset of the pandemic, the construction industry has been at the forefront of efforts to protect construction employees from the virus. The CISC developed a “COVID-19 Exposure Prevention Preparedness and Response Plan” (the “Response Plan”) in March of 2020, which has been made available in both English and Spanish and provided at no cost to the construction industry (see, e.g., https://www.buildingsafely.org/covid-19-coronavirus/). The CISC updated the plan four times to account for changes in guidance from the Centers for Disease Control and Prevention (“CDC”). As discussed more fully below, the Response Plan is tailored to the construction environment, which Federal OSHA has generally classified as low risk.
In addition to the Response Plan, the CISC organized two safety stand downs related to COVID19, one in April 2020 and the other in January 2021. The most recent stand down was designed, in part, to reinforce that construction employers and employees must stay vigilant when complying with key COVID-19 prevention efforts.
Moreover, from April 19, 2021, to April 23, 2021, CISC members partnered with the CDC to conduct a Vaccine Awareness Week in Construction campaign to raise awareness of the safety, effectiveness, and benefits of COVID-19 vaccination among construction workers. The CISC encouraged participation in Vaccine Awareness Week, distributed education materials and a new industry public service announcement, and encouraged participation in the CDC and NIOSH vaccination education webinars for the construction industry.
The data supporting the DOLI Standard has changed significantly from the best evidence available on COVID-19 transmission from January 2020 when the rule was issued. In recent months, significant changes in the circumstances surrounding COVID-19 transmission have emerged. Data from 2020 and 2021 reflects a time when the Delta variant swept through the country. The Delta variant was far more deadly than the Omicron variant which is accountable for most current COVID-19 infections. DOLI must consider the differences between the nature of the variants and levels of community transmission in determining whether a COVID-19 standard is appropriate.
According to CDC data, as of the week ending March 5, 2022, no COVID-19 cases in the United States were due to the Delta variant, with 100 percent of cases were attributable to the Omicron variant. See, https://covid.cdc.gov/covid-data-tracker/#variant-proportions. Contrast this to December 2021, which showed 25.7 percent of COVID-positive individuals in the United States were infected with the Delta variant, and 73.8 percent were infected with the Omicron variant. This trend shows that Omicron, which is more contagious but far less lethal than Delta, has become the dominant variant. In fact, Omicron has been so contagious that the Director of the National Institute of Allergy and Infectious Diseases, Dr. Antony Fauci, famously stated that “just about everybody” will be infected by it. In addition, the Omicron variant “seems to cause fewer hospitalizations and deaths than previous mutations of the virus.”
Additionally, based on local conditions and trends in the Commonwealth of Virginia, the University of Virginia (UVA) COVID-19 Model Projections (updated March 2, 2022) indicate that new confirmed COVID cases in the state already peaked at 114,148 per week during the week ending January 16, 2022. The model predicts with 95% confidence that there will be only 279 cases per week in Virginia by the end of April 2022. See, https://www.vdh.virginia.gov/coronavirus/see-the-numbers/covid-19-data-insights/uva-covid-19-model/ (last visited March 10, 2022).
Finally, in March 2022 the CDC also issued new metrics for measuring the threat of COVID-19 which looks at hospital beds being used, hospital admissions, and the total number of new COVID-19 cases in an area. Specifically, the CDC metrics now consider new COVID-19 admissions per 100,000 population in the past 7 days, the percentage of inpatient hospital beds occupied by COVID-19 patients, and the number of new COVID-19 cases per 100,000 population in the past 7 days. Based on the new CDC metrics for measuring the threat of COVID-19, more than 90% of the United States is a low to medium threat. See, https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html (last visited March 10, 2022). The CDC also acknowledges that at this point in the pandemic, the United States has high rates of vaccine and infection-induced immunity in the population and that medically significant disease can be minimized and prevent excessive strain on the healthcare sector even while SARS-CoV-2 virus continues to circulate
As a general matter, construction operations are low risk with respect to the transmission and spread of COVID-19. Early in the pandemic, Federal OSHA explained that the level of risk of occupational exposure to COVID-19 “depends in part on the industry type, need for contact within 6 feet of people known to be, or suspected of being, infected with SARS-CoV-2, or requirement for repeated or extended contact with persons known to be, or suspected of being, infected with SARS-CoV2.” See, https://www.osha.gov/sites/default/files/publications/OSHA3990.pdf (last visited March 10, 2022). Workers, such as construction workers, that have minimal occupational contact with the general public or other coworkers are generally considered to have a low exposure risk.
Federal OSHA also established a webpage further analyzing when certain types of construction work fall into the various COVID-19 risk exposure categories. According to Federal OSHA’s own assessment, most construction work poses “low exposure risk”; construction work only crosses into “high exposure risk” when it takes place at indoor work sites occupied by people such as other workers, customers, or residents suspected of having or known to have COVID-19, including when an occupant of the site reports signs and symptoms consistent with COVID-19. Therefore, construction work is unlikely ever to pose a “high exposure risk” or “very high exposure risk.” See, https://www.osha.gov/coronavirus/control-prevention/construction (last visited March 10, 2022).
In addition, in June 2021 Federal OSHA published an Emergency Temporary Standard (“ETS”) 29 CFR 1910 Subpart U - COVID–19 applicable to healthcare services and healthcare support services, where the Agency described the high risk of COVID-19 transmission posed by indoor work environments with close human contact. The preamble to this rule acknowledged that “the primary way the SARS-CoV-2 virus spreads from an infected person to others is through the respiratory droplets” and that “most commonly this occurs when people are in close contact with one another in indoor spaces (within approximately six feet for at least fifteen minutes) (CDC, May 2021).” 86 Fed. Reg. 32,376, 32,392 (June 21, 2021). Federal OSHA later referenced a study by the European Centre for Disease Prevention and Control, which found that “indoor settings contributed to 95% of reported clusters.” And the preamble further acknowledged that “there are a number of factors – often present in healthcare settings – that can increase the risk of transmission: Indoor settings, prolonged exposure to respiratory particles, and lack of proper ventilation (CDC, May 6, 2020).” 86 Fed. Reg. 32,393, 32,392 (June 21, 2021). While these factors may be commonly present in healthcare settings, they certainly are not common occurrences in construction environments.
Finally, the current widespread variants of the COVID-19 virus no longer constitute a grave danger to employees in the workplace under Va. Code §40.1-22(6a), and as discussed in the U.S. Supreme Court’s decision in National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration,595 U.S. ___ (2022).
The Supreme Court noted, that while “COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” The CISC agrees with the Court that Federal OSHA—and by extension OSHA State Plans—do not have the authority to regulate daily lives and the “universal risk” OSHA seeks to regulate is not supported by the OSH Act. The Supreme Court was clear that “[p]ermitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
The CISC appreciates DOLI’s consideration of these comments. Based on new data, coupled with the fact that almost two years into the pandemic lockdown orders have long been lifted across the country, suggests that individuals can no longer be said to have a higher risk of COVID-19 infection from workplace exposure as opposed to some other community-based exposure. Given these circumstances, the CISC respectfully requests that DOLI permit revocation the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, 16VAC25-220.
Construction Industry Safety Coalition | buildingsafely.org