Board Members,

 

Thank you for the opportunity to comment on this Emergency Regulation.  I have many concerns regarding the language of this proposed regulation and urge the board to resist the temptation to rush the process, in order to clean up many irregularities that exist in this document.  Even in a time of intense concern about the spread of a dangerous virus, it must be recognized that pushing forward a half-baked regulation, that promises to confuse and disrupt the stakeholders that have made such amazing efforts to protect their employees, will be counterproductive at best. 

As an employer that is committed to the safety and health of its employees, I ask that the board continue to allow employers to follow CDC, DOL and local health department guidance.  The compiled information has been very helpful and with undeniable results.

Please take time to review my comments below.  I hope you will understand that much more collaboration is needed as we jointly attempt to keep Virginia work sites safe and healthy.

 

• On page 5, is the definition of Joint Employment the same as the USDOL definition? It is unclear and creating a new definition would not be acceptable.

 

•  On page 17, the language in § 40.A(3)(c) appears to mean that an employee who has tested positive for COVID-19 may return to work without delay or any other precautions, provided the employee follows ordinary practices common to all employees (handwashing, covering coughs/sneezes, social distancing, cleaning/disinfecting). This seems to contradict the return-to-work prerequisites that follow in § 40.B.

 

• On page 13, the policy implications effectively put employers into a position of liability for COVID-19 contact tracing. The CDC, OSHA, VOSH and Virginia Department of Health (VDH) guidance on this particular activity are unclear to employers. VDH is currently guiding employers to leave contact tracing up to the department. Notice to employers of contact tracing activities is often without any specific detail. This area of COVID-19 regulation cannot be forced upon employers until the government harmonizes its own activities, engagement strategy for employers and communication plan with employers.

 

• The definitions of hand sanitizer are inconsistent within the draft regulation.

 

• Does this regulation redefine PPE?

 

• On Page 6, Section G appears to be referencing out of date CDC guidance.

 

• On Page 6, § 20 references 6 months and 18 months. Why? The sunset of regulations is usually based upon an event not a date. Further, how much time do employers have to update their COVID-19 infectious disease preparedness and response plans? Further, why is there no threshold for changing COVID-19 infectious disease preparedness and response plans?

 

• On page 13, “Feasible” cannot be defined as both “technical” and “economic.” Something can be technically feasible but not economically feasible at the same time.

 

• On page 13, the “Known COVID-19” definition establishes an impossible standard because the employer “should have known that the person has tested positive for COVID-19” and a plaintiff only has to argue that the employer did not employ “reasonable diligence” which is undefined. This appears to be a litigation trap rather than a health and safety standard.

 

• One page 13, the “May be infected with SARS-CoV-2” definition should have the words “or suspected COVID-19 person,” removed. An employer has no way to determine if someone is “suspected” of COVID-19 exposure.

 

• On page 13, #2 should be removed. An employer has no way to determine if someone is “suspected” of COVID-19 exposure.

 

• On page 13, #3 should be removed. “Being a resident of a locality, city, town, or county with moderate or substantial SARSCoV-2 ongoing community transmission” is an unreasonable standard and could render the entire workforce of thousands of businesses unable to report to work.

 

• On page 13, #4 should have the words “moderate or” removed. In fact, the entire section could have civil liberties and interstate commerce implications that require further evaluation.

 

• On page 13, “Face coverings” should be added to the “PPE” definition to reflect CDC guidance. However, is this redefining “PPE” in a way that will create conflicts with other enforcement regulations?

 

• On page 14, the statement that “Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall constitutes physical distancing from an employee or other person stationed on the other side of the wall” is impractical and inconsistent with other practices and current COVID-19 guidance. Physical separation does not have to be achieved by permanent or floor to ceiling walls. Temporary plexiglass and other hard surface barriers are regularly used to retrofit workstations, counters and cubicles as physical separation “shields” or barriers for employees.

 

• On page 15, the definition of “Symptomatic” is problematic for three reasons: 1) Data regarding the incubation period is still uncertain. Reports are now being published that suggest 5 days, 11.5 days or 14 daysi; 2) The symptoms listed here do not appear to be identical to the CDC symptoms; and 3) Employers will be sending thousands of employees home due to allergy, cold or regular flu symptoms as well as potentially quarantining them pending two successive negative COVID-19 tests (which are still not readily available).

 

• On page 16, at § 40.A.#1, the standard would require employers to classify each employee for risk level of exposure. This provision requires assessing employees rather than tasks. Risk assessments should be done by tasks not job titles. This would be a massive burden for employers – imagine individual assessments for an employer with 2,000 employees. Also, will VOSH expect each employer to reduce these determinations into a written document? Alternatively, would the agency be open to an employer categorizing groupings of employees with similar tasks?

 

• On page 16, at § 40.A.#3, has no bearing on risk assessments or employee health and safety protections. Serologic testing is a public health policy issue and not an employer issue. Further, employers do not have medical record access and this provision has no clarification about HIPAA obligations and liabilities.

 

• On page 17, at the second § 40.A.#5, (the numbering for subsection 5 repeats), does the agency intend to require sick leave policy flexibility that exceeds FFCRA requirements? Employers may ask what these requirements are, or if they are left to the discretion of each VOSH inspector, therefore, will failure to perform either function to the satisfaction of an inspector constitute a citable offense?

 

• On page 17, I see that § 40.A.#6, requires contractors to encourage subcontractors to develop non-punitive sick leave policies, and that subcontractors with known or suspected cases of COVID-19 shall not return to work. Is the general contractor or owner exposed to potential citation if the subcontractor violates this provision without providing this information to the employer? Why is this liability being shifted to the employer? Does this now set a precedent for other regulatory issues?

 

• On page 18, it appears § 40.A.#7 (a) requires employers to inform its entire workforce of a COVID-19 positive test. This appears to be a more expansive requirement than federal OSHA and CDC guidelines, which we understand to require an employer to make a more limited disclosure to the employees who may have been exposed. The draft standard may be read to require reporting to employees who were on vacation, working great distances away or otherwise could not reasonably be suspected of exposure. Similarly, subsection (b) may require reporting to other employers whose employees may have been present at the worksite but segregated by distance from the infected employee. Also, if employees are sufficiently notified in §§ 40.A.#7 (a) and (b), are employees protected more by the report to the owner required in § 40.A.#7, (c)? This section is also inconsistent with guidance being provided to employers by VDH regarding employer contact tracing responsibilities. The entire #7 should be struck.

 

 

• On page 18, isn’t the medical record access requirement in § 40.A.#8 already incorporated by reference into the Virginia Administrative Regulatory Manual. Does this provision include a new protection not already required?

 

• On page 20, § 40.B.#2 (a) regarding time-based strategy for return to work is inconsistent with current CDC guidance.

 

• On page 20, § 40.B.#2 (b) regarding test-based strategy for return to work is problematic because of the lack of testing availability.

 

• On page 21, § 40.D.#1 (c) is impractical because many employers have multiple shifts during the same 24-hour period (8 hour, 12 hour, etc.). Further, why are the only choices to “wipe down their area prior to leaving, or the employer may provide for disinfecting of the area at regular intervals throughout the day, and between shifts of employees using the same work area.” “Disinfecting the area” and “wipe down the area” appear to be fundamentally different standards that are inconsistent. Finally, what is meant by “area”? Is this an individual employee’s work station? Is it an entire office? Is it an entire factory?

 

• On page 21, § 40.D.#1 (d) requires both handwashing facilities and hand sanitizer. CDC and OSHA guidance requires one, but not both, which makes sense given recent hand sanitizer shortages. Would the agency consider requiring one or the other, but not necessarily both in all workplaces? § 40.I(6) does the same.

 

• On page 21, § 40.E and F replace “respiratory protection and personal protective equipment” with “respiratory protection, personal protective equipment or face coverings.”

 

• On page 21, § 40.E requires respiratory protection or PPE for workers in shared vehicles. Why not allow administrative controls (e.g., social distancing) in low-hazard situations, such as two or three employees riding several rows apart on a large bus or employees seated at a distance in an uncovered vehicle?

 

• On page 21, § 40.G strike “however, nothing in this standard/regulation shall negate an employer’s obligations to comply with personal protective equipment and respiratory protection standards applicable to its industry.” There are no standards applicable to industry.

 

• On page 21, § 40.H requires private sector employers to consult with the Attorney General of Virginia when making determinations in accordance with their obligations under federal civil rights law. The Attorney General advises and represents the Commonwealth of Virginia. He is not equipped to advise private sector employers. Employers must be able to rely on their own counsel. The EEOC has jurisdiction in these matters. Strike this section.

 

• On page 22, does § 40.I.#2 require a cashier to clean a checkout counter between every single customer?

 

• On page 22, does § 40.I.#4 is inconsistent with existing CDC and OSHA guidance. The waiting period is 72 hours, not 7 days.

 

• On page 22, § 40.I.#5 requires cleaning and disinfecting between every shift. This is impractical due to variable shifts and a cleaning standard every 24 hours is all that should be required for most employers unless there is a confirmed COVID-19 infection. This type of standard does not fit all businesses, specifically those that already have FDA cleaning standards.

 

• On page 22, why is § 40.I.#6 more restrictive than the EPA standard it cites? EPA List N provides for unlisted chemicals that are still effective against coronaviruses.

 

• On page 23, § 40.K should include “face coverings” as provided for in CDC guidance.

 

• On page 25, § 50.A.#6 references “Biosafety Level 3 (BSL-3).” Is this the correct level and why?

 

• On page 25, § 50.B.#6 requires “enhanced medical monitoring” but this is not defined, justified or explained within the context of increased employer liability. This should be struck.

 

• On page 25, § 50.B.#7 requires “job-specific education and training on preventing transmission of COVID-19, including initial and routine/refresher training in accordance with §80” but does not specify how often, in what format or from whom the training curriculum should be provided.

 

• On page 26, § 50.B.#8 seems to introduce psychological stress as a novel workplace hazard. The purpose of the OSH Act and its Virginia Occupational Safety and Health Act is to prevent injuries and illnesses arising from workplace hazards. As referenced earlier in these comments, US Secretary of Labor Eugene Scalia stated that, “Coronavirus is a hazard in the workplace. But it is not unique to the workplace or (with the exception of certain industries, like health care) caused by work tasks themselves. This by no means lessens the need for employers to address the virus. But it means that the virus cannot be viewed in the same way as other workplace hazards.” How can the Regulations introduce psychological stress as a novel workplace hazard?

 

• On page 26, § 50.B.#9 definition of hand sanitizer is inconsistent with the other section of this draft regulation.

 

• On page 27, § 50.C.#1 replace “hazard assessment” with “job task assessment.” Also, conform #1 (a) and #1 (a)(i) to “job task assessment” not “hazard assessment” because of there is no exposure to COVID-19, there is no risk.

 

• On page 28, § 60.A.#1 assumes that HVAC systems are in the control of all employers – they are not. Leased spaces provide employers with no control over the HVAC systems other than operability.

 

• On page 28, § 60.A.#1 (a) (the numbering for subsection 1 repeats) should be replaced to recommend “physical barriers” based upon a “hazard assessment.”

 

• On page 32, § 70.C.#2 (b) is inconsistent with existing law. Employers cannot consider individual health concerns. Instead, a self-reporting option and employer “accommodation” language should replace this section.

 

• On page 33, § 70.C.#7 does not define the training curriculum, the format (online or classroom) or the frequency of training. VOSH should be tasked with developing a standard curriculum that all employers can modify and employ in their businesses rather than expect 200,000+ Virginia businesses to simply guess.

 

• On page 35, § 90.C provides whistleblower protection for employee complaints published to the news media and on social media. Some employers have policies restricting statements to the press or statements reflecting poorly on their employers. Isn’t whistleblower protection intended to protect employee complaints to the responsible government regulatory agency? The language “or to the public such as through print, online, social, or any other media” should be struck.

 

 

Thank you again for reviewing may comments and feel free to contact me if there is an opportunity to collaborate.

Kindest regards,

Frank A. Trujillo

Vice President

Miller & Long Co., Inc.

7101 Wisconsin Avenue, Suite 800

Bethesda, MD 20814

301.657.8000 | 240.876.4205 (cell)

www.millerandlong.com