Virginia Natural Gas, Inc., (VNG) submits the following substantive comments on the proposed COVID-19 emergency rulemaking and urges the Department to accept these comments in the final rule. VNG is the natural gas public utility that serves more than 300,000 residential, commercial and industrial customers in southeastern Virginia
COMMENTS ON PROPOSED RULEMAKING:
Section 10(G) states that to the extent that an employer complies with requirements contained in CDC publications to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this standard/regulation, the employer’s action shall be considered in compliance with this standard/regulation.
Comment: We read this provision as stating that Virginia employers that have implemented and enforced COVID-19 related protocols applicable to their workplace(s) will be deemed compliant with the emergency standard/regulation. We would appreciate DOLI incorporating guidance addressing this interpretation in any preamble or informal guidance (i.e., FAQ) published in connection with the final rule. Such guidance will prove extremely valuable to the regulated community that has been working diligently to implement protocols in accordance with CDC guidance since the public health crisis arose.
Section 40(A)(1) requires in relevant part as follows (emphasis added):at “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 for “very high,” “high,” “medium,” or “lower” risk levels of exposure.”
Comment: The final rule should instead require that “Employers shall classify each employment position” because an individual employee may change his or her role and job tasks and, thus, risk level in a short period of time. This provision should apply to each employment position, not each employees. It is impractical and unnecessary to reclassify the same employee numerous times when we comply with the rule on the basis of classifying an employment position.
Section 40(A)(6) requires that (emphasis added): “Employers shall discuss with subcontractors, and companies that provide contract or temporary employees about the importance of suspected COVID-19 and known COVID-19 subcontractor, contract, or temporary employees staying home and encourage them to develop non-punitive sick leave policies. Known COVID-19 and suspected COVID-19 subcontractor, contract, or temporary employees shall not report to or be allowed to remain at work or on a job site until cleared for return to work.
Comment: We initially note that Section 40(A) contains a mis-numbering in that there are two Sections numbered 40(A)(5). From a substantive standpoint, the Final Rule should apply to all employers alike and the language emphasized should be deleted. The rule should not require one employer to enforce it against another employer. Specifically, this provision would require the owner to enforce the rule against its contractors and subcontractors (i.e., other employers). Contractors and subcontractors should have an independent obligation to enforce the rule with respect to their own employees.
As an alternative to ensure that protocols are in place to require a degree of coordination, this provision could instead provide that “Employers shall instruct contractors, temporary staffing firms, vendors and any other businesses that send workers to the Employer’s workplace that, as a condition of entering the worksite, the contractor, temporary staffing firm, vendor or other business must comply with this Emergency Standard and any Employer rules applicable to workplace visitors.”
Section 40(A)(7) requires in relevant part as follows (emphasis added):
“7. If an employer is notified of a COVID-19 positive test for one of its own employees, a subcontractor employee, contract, temporary employee, or other person who was present at the place of employment within the previous 14 days from the date of positive test, the employer shall notify:
Comment: This Section purports to require broader exposure notification than is required under the CDC’s close contact analysis. The notification requirement under this provision of the Proposed Rule appears to require an unnecessarily broad notification to everyone present at the place of employment or present at work site. The place of employment or work site may be a multistory building or multi-acre construction site at which only a limited number of people came in close contact with the person who tested positive. It is unnecessary and impracticable to identify and notify such a large number of individuals present at the place of employment or work site. An overly-broad notification sweeping in dozens or hundreds of employees who had no contact, let alone close contact, would have the unintended consequence of causing unwarranted anxiety and concern amongst employees. This can cause significant disruption with no corresponding increase in the protection of those workers. This is especially true given that identities of infected employees may not be disclosed.
If COVID-19 exposure is suspected, this provision should only require the employer to notify those in the workplace who were in “close contact” (as defined by the CDC) with the person who tested positive.
Section 40(A)(3)(a-d) provides as follows:
3. Employers shall develop and implement policies and procedures for employees to report when they have tested positive for anti-SARS-CoV-2 antibodies through serologic testing:
a. Serologic test results shall not be used to make decisions about returning employees to work who were previously classified as known or suspected COVID-19.
b. Serologic test results shall not be used to make decisions concerning employees that were previously classified as known or suspected COVID-19 about grouping, residing in or being admitted to congregate settings, such as schools, dormitories, etc.
c. 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).
d. There shall be no change in use of PPE by employees who test positive for SARS-CoV-2 antibodies.
Comment: This section may conflict with protections provided to employees under existing law, including the Americans with Disabilities Act and Genetic Information Nondiscrimination Act. Furthermore, the purpose and rationale for requiring employers to obtain this information is not clear, as it does not seem to have any relevance to the return-to-work process.
Section 40(A)(5) provides as follows (emphasis added):
5. To the extent feasible and permitted by law, including but not limited to the Families First Coronavirus Response Act40, employers shall ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
Comment: We initially note that Section 40(A) contains a mis-numbering in that there are two Sections numbered 40(A)(5). From a substantive standpoint, requiring employers to implement sick leave policies that are “flexible” is vague and would require more specificity to ensure compliance. We note that existing law already provides sufficient protection for employee absences and imposing additional requirements on employers at this time is unnecessarily burdensome.
We also note that this proposed requirement seems to extend well beyond VOSH’s purview. As an alternative to striking it altogether, however, please consider qualifying it with “where reasonably practicable, employers should consider . . . “