As a former VOSH Compliance Officer, VOSH Consultant and VOSH Director of Consultation Services, I have the utmost respect for VOSH/DOLI and the mission which the dedicated staff carryout on a daily basis. However, I respectfully request that 16 VAC 25-220 not be approved.
This regulation is not well thought out or prepared. It is too broad and general in scope and will create unnecessary additional burden on small businesses that are already suffering during this pandemic. There may be a need for special guidance for certain industries but not one overall regulation. If Section 10.G. is true than there is no need for this standard at all.
VOSH does not have the workforce to be able to enforce this regulation. VOSH also does not have the ability to ensure consistent application of this regulation. Larger companies will shrug this regulation off and resign themselves to paying a penalty “if” they happen to get inspected. Small companies in fear of being fined will be forced to spend exorbitant amounts of money that they already do not have. The CDC has put out multiple guidelines for employers to follow. This VOSH regulation goes against some of those guidelines.
40.A.1. VOSH has already classified jobs by exposure risk level but then requires employers to conduct an additional assessment. This is an unnecessary redundancy.
40.A.5. VOSH is now requiring specific sick leave policies. This is far overreaching. Congress has already put leave policy requirements in place and VOSH does not need to step in this area.
40.A.7. It would be an impossible task to try to contact everyone that has been at a place of employment or job site over a 14-day period. This goes against CDC guidelines of contact tracing. This could lead to wide spread panic and potential discrimination against the employee that tested positive.
40.B.1.b.i. VOSH requires a return to work strategy. If the employer chooses the test based strategy, VOSH says that an employee can choose not to follow it and must then be afforded an alternate strategy. This creates unnecessary burden and can again lead to discrimination. If this disease is truly so horrible that we need this regulation, then why would there be any strategy other than a testing strategy?
40.C. How can an employer possibly ensure that physical distancing is observed at all times? Some job functions will not even allow for this. Scaring employers/employees into feeling that they have to do this will create additional safety issues and lead to injuries.
Throughout this regulation, VOSH uses the phrase “to the extent feasible”. Who gets to make the call on feasibility? Is it the CSHO with no knowledge of the business? The RD that does not have a grasp on the requirements of the industry? The large corporation trying to save money? The small business that can’t afford the requirements? This phrase is very vague.
60.A.2. Requiring employers to put in new air handling systems or modify existing systems is far overreaching and potentially detrimental to a small business that has already lost several months of revenue.
50.B.2. & 60.B.2. Many carriers of COVID-19 are asymptomatic. How does this screening stop an asymptomatic person from spreading the virus? This is over burdensome for an employer and is not proven to make any difference.
70.C.1. Will an employer now need to hire an additional staff member with infectious disease knowledge? Will VOSH also be hiring additional staff with this expertise? Is the state going to provide the funds?
This standard appears to be requiring employers to become both doctors and infectious disease control experts. Employers, especially small businesses, are facing extreme hardship from the COVID-19 pandemic. Most employers are already taking good faith efforts to follow all applicable protocols and guidelines. An additional regulation will lead to hardship for employers and will likely lead to additional hardship for employees as well.
Another byproduct of this regulation if adopted, will be the attempted abuse by disgruntled employees and even customers. False complaints will be filed taxing the already thin resources that VOSH has in place. Time and money will be lost by employers trying to respond to VOSH inquiries/inspections which could lead to business closures. This is one more over burdensome, vague regulation that will do nothing more than hurt employers.
There are too many unknowns in regard to COVID-19. Information regarding symptoms, severity and spread change on a daily basis. Adopting anything other than a guidance document at this point is premature.
As an alternative, change this regulation to a guidance document and use all of the resources from the VOSH Consultation Division to focus on helping employers adapt to business during the pandemic.