As evidenced by the rising number of COVID-19 cases in states like Texas, Arizona, and Florida as those economies have begun reopening, Virginia should implement robust precautions to ensure that workers, workplaces, and all people are protected. 

We commend DOLI for quickly developing emergency regulations in the wake of COVID-19. In particular, we thank DOLI for prioritizing social distancing, which is one of the best ways to prevent person to person spread. We also strongly support requiring employers to provide greater transparency and communication when someone in the workplace has been infected with COVID-19, while still complying with the Americans with Disabilities Act and other applicable Virginia laws and regulations. Finally, we appreciate the strong sanitation requirements applying to workplaces and the standards that ensure access to basic sanitation needs for workers.

There are several areas where changes should be made to clarify and strengthen the regulations:  

• The definition of employee ought to clearly state that independent contractors are included for the purposes of these regulations.

• For “high risk” and “very high risk” workers, the draft regulation appears to treat surgical masks and N95 respirators as interchangeable. Recent research has shown this not to be the case. We recommend that for workers most at risk, surgical masks be used only when N95 respirators are not available. 

(https://www.nytimes.com/2020/06/01/health/masks-surgical-N95-coronavirus.html). 

• Meat and poultry processing workers are classified as “medium risk.” Given the high number of COVID-19 cases in these facilities and the physical and space constraints of meatpacking facilities that often prevent social distancing, we recommend designating meat and poultry processing workers as “high risk” workers under DOLI’s emergency regulations. Meat and poultry processing’s classification by federal Executive Order as critical infrastructure means that these facilities are not able to close - making the protection of these workers’ through preventative measures even more important. 

• Training, which is currently required of employers in workplaces with “high” or “very high risk” exposure, ought to be provided in all workplaces, so that all workers are aware of their rights. Indeed, some of the key provisions of these emergency regulations--including the anti-discrimination protections--apply to all workers and therefore should be communicated to all workers.

• This emergency regulatory information should be made easily available in different languages for non-English speaking workers. 

• “Prescreening or surveying” for symptoms prior to work for “medium,” “high” and “very high” risk employees (pages 25 and 29 of the emergency regulations) ought to be expanded to include all employees who are not teleworking. Prescreening and surveying ought to be defined in concrete terms, such as temperature checks or uniform questionnaires, rather than left undefined.  

• Executive Order 63 currently requires all employees to wear masks when in customer facing areas. DOLI’s regulations should explicitly extend mask requirements for all employees to whenever they are within six feet of another employee or customer, except for the eating, health and religious exemptions made clear in EO 63. 

• We urge you to consider making language on teleworking stronger. Rather than “when feasible,” employers ought to be required to justify why teleworking will not work for their employees. In other words, a presumption of teleworking ought to exist.

Thank you for considering these comments from The Commonwealth Institute.  We urge you to do what is right to protect Virginia’s workers so that we do not see a second wave of cases this summer or fall.