Majority Subjective, Un-Enforcable, Susceptible to Inconsistent Application throughout the Commonwealth
#1 §40.A.1
Employers shall assess their workplace for hazards and job tasks that can potentially expose employees to SARS-CoV-2 or COVID-19. Employers shall classify each employee according to the hazards they are potentially exposed to and the job tasks they undertake and ensure compliance with the applicable sections of this standard/regulation
The Standard states that the employer must assess the workplace and job tasks for something called the “exposure risk level”, hereto called ESL. There is no framework, logic, parameters, key, guiding principles or criteria provided. The proposed regulation footnotes the OSHA 3990 publication, “Guidance on Preparing Workplaces for COVID-19”. In large part the regulation has copied and pasted from the OSHA guidelines. One would expect to find the underlying rationale and framework, logic, parameters, key, guiding principles or criteria needed in this document. But No! The OSHA publication provides none of this, zero. There is in-fact, no footnotes, no bibliography, no source documents. It’s as if OSHA and now Virginia DOLI expect employers to be able to reach into the minds of the authors and synchronize their brain waves. One of the key bureaucratic landmines within this so-called ESL hierarchy is the word “SUSPECTED”, it appears 44 times in the proposed regulation. Suspected sources of SARS-CoV-2 virus, suspected presence of the SARS-CoV-2 virus, suspected COVID-19 person, suspected cases, suspected COVID-19 patient or person, suspected of being, or who may be infected with SARS-CoV-2, and suspected COVID-19 employees are the iterations I found.
The ESL is fraught with perplexity and a contradicting logos. The employer has to suspect not only SARS-CoV-2 in the environment but also in, on, from, between a person and suspect COVID-19 in a person in the past, present and future. This is beyond the burden that most employers could even attempt to bear not even addressing whether a good job can be made of it. Don’t get me wrong, this makes sense in the confines of the health care setting and this type of triage is part and parcel to the health care provider. Opening this up to the entire workplace community is an entirely different matter. In a paradoxical mind trick the proposed regulation performs the ESL for employers by giving a generous serving of examples in the Definitions section. One immediately sees that various “health care” services and business are readily populated in the ESL definitions. I contend this is more so for the reason I just stated that the health care industry is very comfortable with this type of risk assessment. But beyond those, this is where things get interesting. In an almost manic pace, industries are rattled of under the “Medium” exposure rating definition. Wait, DOLI did an ESL for all these employers? Show me the paperwork. This seems to make sense since the OSHA publication which is the apparent source of the ESL says “Most American workers will likely fall in the lower exposure risk (caution) or medium exposure risk levels” Okay so the list that just got created with the imaginary ESL seems to coincide with that conclusion (which has no supporting evidence or documentation). But wait a minute, aren’t we trying to recover from a Commonwealth-wide lockdown which included many of these industries given as “medium” or “low” ESL examples?
We are in the midst of an expansive public health test lab, we are guinea pigs while the nation’s “experts” signal that this was predictable but then act seemingly unprepared. It would be a mistake to try to patchwork all these unproven, model-based, best guesses, abundance of caution initiatives into a compulsory, mandate. In summary, I don’t see how employers can accomplish this highly conceptual, light on rubber to road principles, ESL and additionally how they can do this fairly when the Commonwealth of Virginia adds the extra incentive of “a gun to their head” with the possibility of alleged violations. To add the underline and exclamation point to this summary look at the definition for “may be infected with SARS-CoV-2”
“May be infected with SARS-CoV-2” means any person not currently a known or suspected COVID-19 person, but potentially exposed to SARS-CoV-2 through:
1. Contact inside six feet with a known COVID-19 person within the last 14 days,
2. Contact inside six feet with a suspected COVID-19 person within the last 14 days,
3. Being a resident of a locality, city, town, or county with moderate or substantial SARS-CoV-2 ongoing community transmission, or
4. Having traveled through a locality, city, town, or county, state, or country with moderate or substantial SARS-CoV-2 ongoing community transmission within the last 14 days and had contact with a person inside six feet while doing so.
For every employee an employer has to know if they were within 6 feet of a known or suspected COVID-19 person during a rolling 14 day period; Has to know where they live and if where they live has moderate or substantial community transmission and Has to know where they have traveled to and through over a rolling 14 day period. I rest my case. By the way did you know that there are asymptomatic persons who tested positive for COVID-19 that you didn’t know of but with “reasonable diligence” should have known?
#2 “Symptomatic” - means the employee is experiencing symptoms similar to those attributed to COVID-19 including fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea. Symptoms may appear in 2 to 14 days after exposure to the virus.
Under the category of subjective and un-enforceable, this is a great definition and information for people to have a conversation with their doctor about. This is not a good definition nor a responsibility that employers and employees should have to handle
“Employees who test positive by serologic testing and were not otherwise previously classified as known or suspected COVID-19 may go to work provided they are not COVID-19 symptomatic and follow general recommendations to prevent infection with SARS-CoV-2 while at work (i.e., self-monitor for COVID-19 symptoms; wash hands often; cover coughs and sneezes; avoid touching eyes, nose, and mouth; avoid close contact with other persons inside six feet; clean and disinfect frequently touched surfaces daily).”
This is a mandatory requirement for all employers. There are multiple problems with this as a mandate, required and if not done there is the possibility of fines and costly abatement. Employees may go to work if they do not have symptoms which are entirely NOT unique to COVID-19 and the employer must make sure the employee DOES not touch their eyes, nose and mouth, DOES not go within 6 feet of others (Can other employees go within 6 feet of them?) and must track all touched surfaces to be cleaned and disinfected daily. I understand that this is for employees who test positive by serologic testing (did you know that the employer has to take steps to make sure employees tell them). So, there is the possibility that an employee tests positive but they were not flagged as suspected? Go figure. Congratulations employer you are now in the business of preventing people from returning to work based on the symptoms identified above. Good Luck. And if you find out someone tested positive (what is the sensitivity and specificity of these tests by the way?) but you didn’t suspect them of it, that’s gonna keep you up at night. Did you know that employers are not supposed to permit suspected COVID-19 employees to remain at work or go to work?
#3 §50 A.7 - To the extent feasible, employers shall install physical barriers, such as clear plastic sneeze guards, where such barriers will aid in mitigating the spread..
Chalk this one up under prone to inconsistent enforcement. As well as the entire §60 Requirements for hazards or job tasks classified at “medium” exposure risk . As I’ve already pointed out the ESL is flawed and lacks substance. The administrative and work practice controls listed under §60.B are better advertised as guidelines. VOSH is already undermanned and undermotivated. There is no justifiable defense that this regulation can practically be enforced. A regulation that cannot be adequately enforced is a bane to reputable employers and a boom for bad actors. This section in particular is going to be a magnet for disgruntled employees and competitors to use as a weapon to harass and antagonize an already stressed out populace.
The Circumlocution Office (See Charles Dickens)
#1 §40.B Return to Work
“The employer shall develop and implement policies and procedures for known
COVID-19 or suspected COVID-19 employees to return to work using either a symptom- based or test-based strategy depending on local healthcare and testing circumstances. While an employer may rely on other reasonable options, a policy that involves consultation with appropriate healthcare professionals concerning when an employee has satisfied the symptoms-based strategy requirements in §40.B.1.a will constitute compliance with the requirements of §40.B.”
I am pretty sure that the NASA astronauts don’t get this kind of detailed infection control paperwork. I am kinda surprised DOLI does not provide a flow chart for all these decisions and days passed counting requirements. Congratulations boss you were just given an honoray doctorate degree in medicine now read the best seller, “How to detect symptoms in employees who have been constrained at home for weeks, how to use big data and AI to track your employees on a calendar and still find time to get some work done.” And its best selling companion book, “Asymptomatic employees, how to test’em or time’em and keep’em segregated from the suspected employees”. What happens when an asymptomatic gets within 6 feet of asuspected, observed by a pre-symptomatic? I’m pretty sure nuclear fusion. In all seriousness, this is gobsmack.
#2 – If you think that was gobsmack, wait till you read the section on “Access to common areas, breakrooms, or lunchrooms..” Spoiler Alert: They must be closed or controlled. How can they be controlled? Trignometry, hall montiors, and a healthy does of hazardous EPA pesticides. Almost forgot, you are going to need wipe monitors as well because you must require employees to clean up after themselves. Wait maybe this isn’t so bad.
Trojan Horse
§40.F - Employers shall also ensure compliance with mandatory requirements of any
applicable executive order or order of public health emergency.
Re: Northam’s Executive Order 63, “Requirement to wear face covering while inside buildings”. The Governor cannot order citizens to wear face masks. The Virginia Department of Health has the authority to enforce this order meaning they can punish the business with a Class 1 misdemeanor. How does this work? A customer refuses to wear a mask and the business owner would be cited? What’s even more crazy, a person does not need to wear a face mask: “Persons with health conditions that prohibit wearing a face covering. Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition” and the person is not required to identify the underlying medical condition.
§40.G says as much, “Nothing in this section shall require the use of a respirator, surgical/medical procedure mask, or face covering by any employee for whom doing so would be contrary to their health or safety because of a medical condition..”
Does the Board have the authority to allow this regulation to incorporate future EO’s or Public Health emergency orders? Does that circumvent due process or Fair Notice standards?