I am a senior manager of a heavy civil construction company and a precast concrete manufacturer in Virginia. Having read 16 VAC 25-220, I have significant concerns about the regulation.

The ten (10) calendar days or six (6) business days to review and comment on the proposed regulation is an inadequate amount of time for small business which is working with minimal staff and without infectious disease experts on staff.  The proposed regulation will have a significant impact on the daily operation of all Virginia businesses and needs to be carefully crafted to ensure that it accomplishes the intended outcome. A rush to implement the regulation without careful review could jeopardize the safety of employees the regulation is intended to protect, as well as causing disruption of business activity that has already been harmed by the pandemic. Furthermore, small businesses have already put into place effective procedures and controls based on OSHA/CDC/VDH guidelines which may now have to be completely revised. I do not believe there is a need for the proposed regulation.

Listed below are some specific concerns about the proposed regulation:

1. The proposed regulation does not address essential businesses. The CDC and VDH have guidance on essential business personnel which should be incorporated into the regulation.
2. § 10.G, as well as various references throughout the proposed standard, refer to CDC publications.  The CDC, as well as VDH, guidance is changing almost weekly regarding the virus, and the guidance has changed dramatically since the beginning of the pandemic. How will the proposed regulation keep up with the likely forthcoming changes in guidance? When there are differences in guidance between CDC and VDH, as there currently are, which agency should prevail? Are Virginia businesses not required to comply with VDH?
3. § 20 states this standard will take effect immediately. How much time will employers be allowed to develop and implement the necessary policies, perform the hazard assessments, and conduct the required training?
4. Page 7, “Community transmission”, specifically where does an employer go to find this information? How are “pockets” of infection within a larger area to be addressed?
5. Page 10 “Medium” definition far exceeds OSHA’s definition of this term. DOLI is proposing a regulation that is “one size fits all” and does not take into account the differences within an industry category. For instance, the definition includes “indoor and outdoor construction settings” when in fact many outdoor construction settings involve individual employees working alone in heavy machinery with virtually no exposure to other employees or the public. The definition of “Medium” is overly broad.
6. Page 13, “Known COVID-19” references “asymptomatic”, “tested positive”, and “should have known”. If an employee shows no symptoms (asymptomatic), how would an employer know of a positive test unless the employee specifically told the employer of the positive test? The VDH is not currently contacting employers regarding employee’s positive test results, nor is VDH doing contact tracing at this time. This verbiage seems to be a liability trap for employers.
7. Page 13, “May be infected with SARS-CoV-2” requires contact tracing to determine exposure. Without contact tracing, employers cannot know of potential exposure. Contact tracing requirements and procedures are conflicting between OSHA, CDC, and VDH. VDH implies that contact tracing is to only be performed by the VDH via trained personnel. The conflicting requirements must be resolved and specific procedures for contact tracing must be clarified before creating a regulation. Limiting employer liability for contact tracing must also be addressed prior to a regulation.
8. Page 13, “May be infected with SARS-CoV-2”, Items 1 and 2, state “last 14 days”. VDH guidelines specify 72 hours.
9. Page 13, “May be infected with SARS-CoV-2”, Items 3 and 4, for employers with employees living in and traveling through numerous localities in various surrounding states, this requirement is overly burdensome for employers to attempt to track.
10. Page 14, “Physical distancing” definition is overly restrictive. There are numerous ways to physical distance besides “by a permanent, solid floor to ceiling wall”.
11. Page 15, “Symptomatic” includes more symptoms than OSHA or VDH. How is an employer to distinguish “congestion or runny nose” due to allergy from that same symptom of the virus? If an employer fails to quarantine an employee simply for congestion or runny nose, and that employee subsequently tests positive for the virus, what employer liability implications does this present? Is the employer to play doctor and attempt to diagnose the employee’s reported symptoms? Per the proposed standard, anyone with one or more of the listed symptoms is to be considered “Suspected COVID-19”. Quarantining every employee with one or more of the listed symptoms will devastate the workforce and needlessly overload the primary care facilities with employees attempting to be tested. Also, the symptoms have changed significantly since the beginning of the pandemic and may change again. How will the regulation address future changes?
12. § 40.A(1) states the employer shall classify each employee according to hazards. This would require ongoing analysis of each employee as daily tasks are reassigned and new employees are hired. Rather, the hazards of each task are what should be evaluated.
13. § 40.A(3) requires the employer to create policies and procedures for employee reporting of positive serologic tests. Because of HIPPA, employers do not have access to the test records. In most cases, if a document is even available, the employer is only provided with a document from a medical provider stating the employee had a positive or negative test, but the document does not reference the type of test performed and such medical information will not be released if the employer would request it. There are HIPPA, EEOC and ADA liability traps for employers in this standard.
14. § 40.A(3)(c) states that employees who test positive and were not otherwise classified as known or suspected COVID-19 (asymptomatic) may go to work. This contradicts the return-to-work prerequisites in § 40.B. as well as CDC/VDH guidelines.
15. § 40.A(4), what combination of symptoms constitute “suspected COVID-19”? Does one symptom, such as congestion, runny nose, or headache, constitute suspected COVID-19? Are employers to quarantine every employee reporting a runny nose or a headache? This could devastate businesses with most of their employees quarantined and overwhelm medical providers with employees referred for a single listed symptom.
16. § 40.A(6), what liability does this create for employers with subcontractors? Since the proposed standard applies to all employers anyway, why is #6 included in the proposed standard?
17. § 40.A(7), is the proposed standard suggesting that ALL workers at the site be notified? What then would the employer be required to do with these individuals once notified? Are they to be considered “May be infected with SARS-CoV-2”? The proposed standard does not differentiate between close contact and merely being on site. The CDC/VDH recommend quarantine for close contacts only. CDC and VDH guidelines vary significantly on quarantine protocols for individuals exposed to an infected person.
18. § 40.B(1)(b), employers have no input into the type of test ordered. Also, whether to perform a test or not is at the discretion of a medical provider, and getting tested twice is not at the discretion of the employer. Actually, getting a test has proven to be very difficult and results have been 7-10 days forthcoming.
19. § 40.B(1)(b)(ii) creates a financial burden for employers to pay for testing that is required to return to work even though the exposure likely was not work related. This is the purpose and responsibility of employee health insurance.
20. § 40.B(2), healthcare professionals are reluctant to spend time determining when asymptomatic employees may return to work. It is being left up to the employer to determine when the time-based strategy has been met. The last sentence of this part needs to be struck. Also, VDH guidelines state a 14 day quarantine period.
21. § 40.D(1)(c) is very vague regarding “wipe down” and “their area”. These terms needs to be defined.
22. § 40.E and § 40.F should state “respiratory protection, personal protective equipment or face coverings.”
23. § 40.H, employers in Virginia cannot consult with the Attorney General on matters of religious waivers.
24. § 60.C(2), If this proposed standard becomes effective immediately, how long does an employer have to complete the workplace hazard assessment? This is something that may take some time and outside assistance to complete.
25. § 70.A(2), If this proposed standard becomes effective immediately, how long does an employer have to complete the Infectious Disease Preparedness and Response Plan? This is something that may take some time and outside assistance to complete.
26. § 70.C(2)(b) Employers are prohibited under existing laws (EEOC, ADA, HIPPA) from treating employees differently based on age, medical conditions, pregnancy, etc. Employers cannot even inquire about these conditions.
27. § 80.C references §50 but then also says it applies to “medium” risk exposure which is covered under §60. This needs to be clarified.

Allowing businesses to tailor the OSHA/CDC/VDH guidance to their specific operations enhances safety, but forcing a “one size fits all” approach will actually harm the level of safety already established. The infection rate is decreasing rapidly which proves the procedures in place now are working. Is there truly a need for the proposed regulation, and could safety not be enforced through the General Duty Clause for those employers who knowingly violate the COVID-19 safety requirements? Would DOLI/VOSH time be better spent in developing training and outreach materials for Virginia?