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Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
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3/19/22  11:15 pm
Commenter: Nandan Kenkeremath, Leading Edge Policy & Strategy, LLC

Repeal The Rules At 16VAC25-220 Because The Are Substantively And Procedurally Defective

I have provided extensive written comments in support of repealing the rules at 16 VAC 25-220.  Please read them and respond to them.  The written comments describe only a few of the substantial substantive issues with these rules.  In addition, as discussed in the comments, the Safety and Health Codes Board (Board) should not maintain and should reject the Board's position denying further judicial review as long as the Board took a vote. Further, the Office of Attorney General's response to questions posed in Governor Youngkin;s Executive Order (EO) 6 fails to transparently engage in a discussion of the procedural problems. 

The "Suspected" COVID and return to work provisions remain unworkable, vague and not supported by the evidence.  Prohibiting consideration of serologic tests is anti-science and illegal.  The rules do not have a rational approach to economic feasibility.

The Board should not have argued that a vote of the Board precludes judicial review.  The Board improperly argued that a vote taken before consideration of the proposed rule was dispositive.

OAG in its response to EO6 has misstated the holdings of the Court of Appeals and has not addressed salient issues that EO6 effectively to consider.  DOLI staff lacks authority to propose a rule, but it was DOLI staff and not the BOard that initially proposed the first version of the Permanent COVID Rule.  The proposed rule should have had an economic impact statement and regulatory flexibility analysis available for a 60-day comment period, but the process did not provide for this. The Board never evaluated the likely substantial negative impact of the Suspected COVID and return to work provisions, where the symptoms are from flus, colds and all manner of circumstances that are not COVID. In 2020 and 2021, the Board, Governor Northam, and Commissioner Oliver failed to address the confusing overlaps between Executive Orders and the rules.  The illegal mandates of Governor Northam under EO 63 also undermine the validity of the rules.  The claims that these rules were useful is not supported.  They should be repealed.

CommentID: 120826