Comments on 16 VAC 25-220

On March 12, 2020, Governor Northam declared a state of emergency in Virginia due to COVID-19. Subsequently, on March 17, 2020, the Governor issued Executive Directive Seven (ED 7) instructing the Department of Motor Vehicles (DMV) to take several actions including the closure of DMV Customer Service Centers, DMV 2 Go, and DMV Connect locations statewide. Within the following months, DMV has implemented and continued to follow a thoughtful, reasoned, multi-pronged approach to safely reopening critical in-person services to our customers. Throughout the COVID-19 public health emergency, DMV has taken every precaution for employee safety and well-being. In that spirit, we are seeking clarification of items contained in the proposed standard/regulation in order to maximize employee safety and ensure our continuing compliance with all applicable workplace safety requirements.

First, the regulations do not consistently define what constitutes “contact” and an overall reading of the proposed regulations potentially defines many more persons as “suspected COVID-19” than the Centers for Disease Control and Prevention (CDC) guidance. The proposed standard/regulation uses at least three separate terms to describe the proximity and intensity of potential exposure: “present at,” “contact,” and “close contact.” Although “close contact” is defined parenthetically as “inside six feet of,” it would be helpful if these terms were more deliberately defined in § 30 (Definitions) and methodically used throughout the text. In addition, “close contact” is defined differently in the proposed standard/regulation than by CDC which defines “close contact” as “[s]omeone who was within 6 feet of an infected person for at least 15 minutes starting from 2 days before illness onset until the time the patient is isolated.” As the proposed standard/regulation explicitly equates compliance with requirements contained in CDC publications to regulatory compliance (See: § 10(G)), the standard/regulation would be clearer if language in the standard/regulation tracked with cited public health authorities. The use of the phrase “present at” as another situational descriptor for potential exposure further complicates the implementation and ongoing appraisal of administrative, engineering, and work practice controls developed to keep DMV employees safe. In addition, the phrase “May be infected with SARS-CoV-2” is defined to include “3. Being a resident of a locality, city, town, or county with moderate or substantial SARSCoV-2 ongoing community transmission, or 4. Having traveled through a locality, city, town, or county, state, or country with moderate or substantial SARS-CoV-2 ongoing community transmission within the last 14 days and had contact with a person inside six feet while doing so.” Categories 3 and 4 of this definition are not consistent with CDC categories and would require the employer to be able to accurately track the movements of employees during non-work hours and accurately determine who might have traveled through or live in a high risk area.

In addition to seeking definitional clarity, DMV requests clarification of the following additional sections.

Section 40(A)(3) does not identify the policy, objective, or use the employer shall make of an employee’s report of serologic testing.

Section 40(A)(6) requires employers to “discuss” with subcontractors and companies that provide contract or temporary employees the importance of suspected or known COVID-19 employees staying at home. Please clarify the parameters of this discussion, whether it can be written or oral, whether the employer must document the communication, and any other details to enable the employer to meet this requirement.

Section 40(A)(7) differs from CDC contact tracing guidance which references 2 days prior to the onset of symptoms, rather than 14 days prior to the date of a positive test. To allow the employer to follow uniform best practices it would be clearer if this part of the regulation followed the CDC guidance.

Section 40(A)(7) requires that the employer give notice within 24 hours which may not be possible in the event that the employer receives information on a weekend, holiday, or any time outside of regular business hours. Please clarify if the employer has a full business day to notify all employees.

Section 40(A)(7)(b) requires notice to “other employers whose employees were present at the work site.” Clarification is needed as to whether this notice only includes other employers whose employees were working at the employer’s work site as subcontractors, temporary employees, or contract employees. As currently drafted, the requirement could be interpreted to require the employer to notify all other employers whose employee was present, including employers of delivery service employees (e.g. USPS, UPS, etc.), employers of cash management professionals (e.g. armored truck services), and other incidental services. Further complicating an understanding of the employer’s requirements is the use of the phrase “present at” in the proposed standard/regulation, which seems too vague to allow for employers to have confidence in regulatory compliance, especially with exposure and notification requirements.

Section 40(A)(7)(c) requires notice to a building or facility owner. Please clarify if there is a duty to notify if the employer is the sole occupant/tenant of the building or facility.

Section 40(A)(8) seems inconsistent with the confidential notification system established by the Virginia Department of Health. Employees should not have access to the name of the individual with COVID-19, or to the records of contact tracing listing other individuals.

In Section 40(B)(1)(a) it is not clear if documentation from a medical provider is required if the employer’s policies and procedures for employees return to work uses the symptom-based strategy. Requiring a note from a medical provider could be financially burdensome for the employee and some medical providers are unwilling, due to lack of conclusive data, to provide a definitive medical release for COVID-19 patients.

Section 40(I)(4) requires sanitation and disinfection if a “suspected COVID-19” employee worked in the area. However, because a “suspected COVID-19” employee is a person who is “symptomatic,” and “symptomatic” is defined as experiencing a variety of symptoms common to many conditions, the regulation could be interpreted to require sanitation and disinfection when any employee calls out sick for any reason. CDC guidance has changed over time, but currently treats major symptoms such as fever, cough, or shortness of breath as probable cause to suspect COVID-19, but in the absence of major symptoms, requires the presence of two or more other symptoms to make an employee “suspected COVID-19” as too many of the minor symptoms are common. Please consider either narrowing the underlying definitions or more clearly delineating when sanitation and disinfecting are required, to enable employers to confidently meet sanitation and disinfecting requirements when a risk of probable COVID-19 is present.

Section 40(I)(7) requires the employer to ensure that the manufacturer’s instructions for use of cleaning products have been followed. This regulation should clarify the duty of an employer who contracts with another employer for cleaning services.

As always, we appreciate the opportunity to participate in the regulatory process and look forward to working with our state agency partners to keep our employees—and all Virginians—safe.