June 22, 2020

Princy Doss

Director of OPPI

600 E. Main Street

Suite 207

Richmond, VA 23233

Comments of the National Employment Law Project on the Emergency Temporary Standard (ETS), Infectious Disease Prevention: SARS-COV-2-Virus that Causes COVID-19, applicable to all employees and employers covered by the Virginia Occupational Safety and Health Program Jurisdiction

The National Employment Law Project (NELP) submits the following comments in support of the adoption of the proposed Emergency Temporary Standard (ETS), Infectious Disease Prevention: SARS-COV-2-Virus That Causes COVID -19, applicable to every employer, employee and place of employment in the Commonwealth of Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program.  We urge the Virginia Safety and Health Codes Board to adopt this standard with the amendments proposed below.

NELP is a non-profit law and policy organization with 50 years of experience providing research, advocacy, and public education to advance the employment and labor rights of the nation’s workers. NELP seeks to ensure that all employees, and especially the most vulnerable ones, receive the full protection of employment laws, including health and safety protections. NELP’s Worker Health & Safety Program Director, Deborah Berkowitz, is a former OSHA official and expert in OSHA enforcement and health and safety standards. NELP works with unions such as the United Food and Commercial Workers Union and the International Brotherhood of Teamsters in Virginia (VA), as well as VA based community and worker rights organizations such as Virginia Legal Aid Justice Center and the Virginia Interfaith Center for Public Policy.  NELP also works with employers through the American Sustainable Business Council.

In this Pandemic, protecting workers from COVID-19 at work will protect the public.  If exposure to COVID -19 is not mitigated at work, it will continue to spread in the workplace and then back out into the community. The Virginia Safety and Health Codes Board must do their job and approve this standard to protect all Virginians.  Right now, there are no mandatory protective measures for employers to implement to protect workers. There is just guidance from the Centers for Disease Control and Prevention (CDC), which are not mandatory-- they are advisory and are written as such. The advisory guidance documents for businesses published by CDC related to COVID-19 also never say "shall", they simply say “consider this” or do this “if possible", allowing employers to say they are complying if they only consider a suggestion. There is no better evidence that voluntary guidelines don't work than the rampant spread of COVID-19 in meat and poultry plants and nursing homes -- sickening hundreds and killing many just in Virginia alone.

Further, since the beginning of the Pandemic and its spread in the workplace, the basic protections needed to mitigate the spread of COVID-19 at work have remained the same. This is not rocket science.  We all know the basic protections—physical distancing, masks, hand sanitizer/washing hands, etc.  Agencies don’t need flexibility; they need to be able to set and enforce mandatory safety and health measures that should have been required in March.  Right now, when a worker—could be your parent or child or neighbor- walks into their workplace, there are no requirements that employers must provide physical distancing, masks, hand sanitizers, or even let employees know if they have been exposed at work to COVID-19.

This standard must also cover all workers/employers under the Virginia Occupational Safety and Health Program’s jurisdiction. No employer or industry can be exempt. We note that the Virginia Dental Association is already asking for an exemption. This is reminiscent of the opposition by dentists in 1992, when OSHA promulgated a standard to protect workers against bloodborne infectious diseases (HIV/AIDS). Stunningly, the American Dental Association demanded that they be exempt from that standard.  They challenged the regulation in court and lost.  Of course, now, every dentist complies with the requirements—they embraced it completely.  

The Virginia Safety and Health Codes Board must approve this common sense and protective emergency standard and do their job and meet their responsibility to protect the safety and health of working men and women in Virginia during this emergency. Virginia’s lives and health depend on you.

We urge the board to adopt the proposed standard as a standard with the following very critical amendment. We urge the board to delete Paragraph G on page 6 (see below). We feel that this paragraph is confusing and could undermine the protections the standard otherwise would ensure.

1. Delete the paragraph below, from page 6 of the ETS document:  

“§10 G. 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 actions shall be considered in compliance with this standard/regulation.”

The CDC has not issued requirements—it has issued guidance (recommendations). The CDC publications on COVID-19 are not requirements, and nor are they standards—they are written as suggestions. Thus, the CDC publications to mitigate CARS-CoV-2 and COVID-19 related hazards state that employers should just consider these recommendations—the employer does not actually have to implement any of them.  For example, the CDC publications are filled with non-mandatory recommendations to employers in the meat and poultry industry, and include phrases such as “consider this”, or do this “if possible”. Thus, employers say they are in compliance with these suggestions, if they have just considered something, and decided it is just not possible.  You must strike this paragraph –or workers will continue to be at risk at work in Virginia to COVID-19, and the disease will spread at work and back out into the community.  All employers must comply with the VA Emergency Temporary Standard and the requirements in the standard—and not be allowed to simply consider vague recommendations and suggestions as cover to continue exposing workers to unsafe conditions in this Pandemic.

Further, the very excellent corresponding  briefing package prepared for the Virginia Safety and Health Codes Board by the Virginia Department of Labor also echoes our comment  pages 48 and 49,  where it says:

“With regard to CDC guidelines generally, as an example, its “Meat and Poultry

Workers and Employers, Interim Guidance from CDC and the

Occupational Safety and Health Administration (OSHA)” states that:

“All meat and poultry processing facilities developing plans for continuing

operations in the setting of COVID-19 occurring among workers or in the

surrounding community should (1) work directly with appropriate state and

local public health officials and occupational safety and health professionals;

(2) incorporate relevant aspects of CDC guidance, including but not limited to

this document and the CDC’s Critical Infrastructure Guidance; and (3)

incorporate guidance from other authoritative sources or regulatory bodies as

needed.”174 (Emphasis added).

The above-referenced CDC Interim Guidance document contains very little

“mandatory” language:

? “shall” is never used

? “much” is used 8 times but mostly with regard to OSHA regulatory

requirements

? “should” is used 56 times

? “may” is used 39 times

? “recommend” or “recommendation” is used 7 times

2)           We urge the board to adopt a slight change to the following language, to ensure that the burden is on the employer to provide safe conditions. On Page 20, the following clause states:

§40   C. Unless otherwise provided in this standard/regulation, employers shall ensure that employees observe physical distancing while on the job and during paid breaks on the employer’s property.

We suggest language that reflects the OSHA law and the requirements that employers provide a safe workplace: Unless otherwise provided in this standard (we recommend this is a standard and not a regulation), employers shall ensure that employees can observe physical distancing while on the job and during paid breaks on the employer’s property.

3. We urge the Board to make clear in the below paragraph that it is referring to EO by the Governor of Virginia, on page 21:

 §40  F. Where the nature of an employee’s work or the work area does not allow them to observe physical distancing requirements, employers shall ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry. Employers shall also ensure compliance with mandatory requirements of any applicable executive order or order of public health emergency

3. We urge the board to delete the words ‘if feasible’ from this very important requirement, so there is no doubt that must always happen. On page 22:

§40 I 5.  Where feasible, shared tools, equipment, and vehicles shall be cleaned and disinfected prior to transfer from one employee to another

3. We further urge the board to change the wording – or delete this paragraph -- on the top of page 28 (see paragraph below).  The paragraph (at §50.C.5) appears to contradict all the protective measures required  on page 27,  and could leave health care workers completely unprotected as they care for patients with COVID-19.  It allows face masks instead of respirators—as required by the rest of the standard.  The clause must be clear that if respirators are required, then that is what is to be used. This clause is found on the top of page 28:

§50.C. 5. Unless contraindicated by a hazard assessment and equipment selection requirements in §50.C.1 above, employees classified as “very high” or “high” exposure risk shall be provided with and wear gloves, a gown, a face shield or goggles, and either a surgical/medical procedure mask or a respirator when in contact with or inside six feet of patients or other persons known to be, or suspected of being, infected with SARS-CoV-2. Gowns shall be large enough to cover the areas requiring protection.

3. We urge the board to adopt a provision that requires that employers provide all employees (at all risk levels) with job-specific education and training on preventing transmission of COVID-19, including initial and routine/refresher training in accordance with §80.

We thank you your time and consideration and urge the board to pass this standard (as a standard) with the above changes.  Since early February, we have known that COVID-19 has been spreading in the workplace. Though all workers either on the job now, or returning to work in the near future, are at risk of illness, Black and Latinx workers and other workers of color, including immigrants, are more likely to be in frontline job and these communities have disproportionate rates of serious illness and death related to COVID-19.  Because the Federal Government has not set any requirements or standards that mandate specific measures to protect workers from COVID-19, workers’ lives and health have been at risk.  We know as of early June that at least 25,000 meat and poultry workers have been infected with COVID-19, as well as over 34,000 nursing home workers, thousands of grocery store, corrections, health care and first responders, warehouse, sanitation, transit  workers and more have been infected. So many have died. This could have been prevented had there been clear standards with requirements for employers to implement to mitigate the spread of COVID-19 at work.

 We applaud Governor Ralph Northam, the Virginia Department of Labor and Industry, and the Virginia Occupational Safety and Health Program for this incredible effort to protect workers and their communities in Virginia from COVID-19. We urge the board to vote to pass this standard (with our suggestions) at the emergency meeting on June 24^th.

Sincerely,

Debbie Berkowitz

Safety and Health Program Director

National Employment Law Project (www.nelp.org)