Dear Members of the Virginia Safety and Health Codes Board:

We are an entrepreneurial company that owns and operates five hospitality businesses in Virginia – a winery, event venue, restaurants and event planning and design business.  We are investing in an independent resort in Fauquier County this year.  We employ 200+ in our businesses.  Our economic losses since March are over $2.5MM and we are now committed and focused on a safe and compliant reopening for our businesses.

This letter is specifically related to your consideration of adopting an Emergency Temporary Standard/Emergency Regulation, Infectious Disease Prevention, SARS-CoV-2 Virus that causes COVID-19, §16 VAC 25-220, applicable to all employers and employees. 

As we work through the reopening phases, our Virginia team has researched the guidelines extensively.  Our businesses are doing everything, starting with protecting our employees and customers by following the guidance from OSHA and the CDC and it is evident that these existing safety standards provide thought and proven guidance and enforcement for businesses.   The serious concerns we have learned during this critical time is that the proposed emergency regulations are overreaching broadly based static regulations and red tape.

The current Federal and State guidelines approach is working—and no further ‘new’ Commonwealth standards are needed. Our industry owners counsel research has found that the ones proposed to the Board could unfortunately harm workers.  It will rapidly become outdated as this challenge evolves and will constrain employers from pursuing the adaptable, innovative, data-driven, and effective approach to protecting worker health and safety that is proving crucial during this pandemic. 

Therefore, we respectfully request you reject the proposed emergency regulations

We fully encourage the Department of Labor and Industry to continue their approach to investigate claims, notify businesses of complaints, and critically work with businesses to ensure they are following proper procedures and issue fair fines when appropriate. 

Existing OSHA Standards are Enough and Enforceable.

There have been extensive rulings on the Federal Level.  USDOL and US Court of Appeals for the District of Columbia Circuit have already provided direction on this issue. In the last three months there have been relevant and impactful emergency standards for COVID-19 that apply to our businesses from OSHA.  OSHA's industry-specific guidance is far more informative for workers and employers defining the steps to be taken in particular workplaces.

Our Virginia businesses follow the OSHA statutes and regulations to assess our operations and determine the existence of hazards and are fully providing the necessary PPE to our staff including gloves and face masks, together with extensive daily sanitation and staff health checks.  And, most importantly, we are committed to meeting or exceeding the existing standards—including PPE, recordkeeping and reporting, sanitation, and access to medical records—as well as the general duty clause, in ensuring worker safety related to COVID-19.

This supports and does not hamper the Commonwealth’s ability to enforce COVID-19 related safety measures; the Commonwealth already has the power to take action against non-compliance businesses.

“One Size Fits All” regulations proposed by the Department reduces the flexibility businesses need to quickly alter procedures to remain safe during the ever-changing circumstances of this pandemic especially when each industry has its own specific needs. 

Employers and workers are benefiting from OSHA and the CDC’s flexible and targeted approach to protecting workers’ health and safety.  The hospitality industry has issued their own guidelines to help hotels, restaurants and wineries reopen safely while protecting workers from the coronavirus based on their operations roles and specific needs.  We have proven professional standards for cleaning and sanitation, personal hygiene, social distancing and health monitoring for our employees.  We’ve seen both OSHA and the CDC continually issue updates to their guidance.  We found that OSHA updated their guidance for employers are recent as May 19, 2020 and the CDC on May 27, 2020.

By setting these emergency standards, the Commonwealth is freezing current scientific understanding into place which is unnecessary and poses more risk for our businesses and workers. 

The board’s proposal creates uncertainty and goes beyond OSHA Recommendations.  There are multiple of impractical and ill-advised broad standards from unreasonable knowledge of possible employee infections, unlisted chemicals for cleaning, and items out of the control of a leasehold business.

We ask the Board to reject any proposed amendments presented at the meeting on June 24^th that do the following given their liability risks that are not in our control:

1. Change Virginia’s unemployment insurance laws to clarify that workers have good cause to quit -- and therefore should be eligible for unemployment insurance benefits -- if their employer requires them to work under conditions that they believe would threaten their health and safety.
2. Change Virginia’s Workers Compensation laws to create a presumption that a worker who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment.
3. Impose additional enforcement mechanisms beyond what is currently available to the Department or claimants such stop-work orders or business closures, enhanced fines, filing a private civil action, and awarding attorney fees.  

Next Steps & Moving Forward

Should the Board approve any new emergency regulations, we believe any extension beyond four months needs to be addressed with the normal rulemaking process and provide an opportunity for the Board to evaluate the implementation of the emergency regulations and consider any new guidance issued by OSHA or CDC because of the changing science.  This ensures the targets of the rulemaking receive due process and there’s an opportunity to review the implementation and impact of any approved emergency regulations.

Before Virginia’s small business owners must be in compliance, VOSH needs to provide online consultative services for helping employers develop COVID-19 infectious disease preparedness and response plans.  Also, VOSH should prepare a standard curriculum for all employers to use in training employees.  We are using national restaurant and hotel training and protocol standards.

Finally, we respectfully request you reject the proposed emergency regulations. 

We understand and believe that the Department has sufficient authority and enforcement powers to address the concerns of unsafe work environments.

While working through these devastating economic impacts, our Virginia businesses continue to keep the safety and health of our employees as their top priority as we reopen and continue to employee our teams. 

We need your support! This action will give Virginia’s small businesses an opportunity to rebuild their businesses, restore their customer base and rehire their employees, as we are doing now.

Sincerely,

Dean Porter Andrews

Managing Member – Easton Porter Group LLC

            Pippin Hill Farm & Vineyards           Red Pump Kitchen

            Virginia Wine Works                        Blackthorne Inn

            Easton Events LLC

Cc:  Brian Ball, Secretary of Commerce and Trade

Megan Healey, Chief Workforce Advisor to the Governor

Clark Mercer, Chief of Staff

Ray Davenport, Commissioner of the Department of Labor and Industry

Members, Virginia General Assembly