The American Federation of State, County and Municipal Employees (AFSCME) District Council 20 is pleased to submit these comments in support of the proposed Emergency Temporary Standard for Infectious Disease Prevention: SARS-CoV-2 Virus that Causes COVID-19. We urge you to adopt and implement a final standard with the changes we recommend.

AFSCME District Council 20 represents public service employees in Virginia. Our members include healthcare workers, bus operators, maintenance technicians, custodians and more. AFSCME advocates for fairness in the workplace, excellence in public services and freedom and opportunity for all working families. An important part of our mission is to advocate for our members in their workplaces, including their health and safety. Frontline workers are crucial in the fight against COVID-19, and they need and deserve adequate protections.

SARS-CoV-2, the virus that causes the Coronavirus Disease 2019 (COVID-19) and the source of the COVID-19 pandemic, has caused enormous harm throughout the world. As of June 17, 2020, the United States continued to be the epicenter of this pandemic with 2,137,604 confirmed cases and 117,030 deaths (John Hopkins COVID-19 Map https://coronavirus.jhu.edu/map.html). Confirmed COVID-19 cases in Virginia totaled 55,331 and resulted in 1,570 deaths (CDC Cases in the U.S. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html).

Since the pandemic began, District Council 20 has surveyed public service workers about their employers’ responses to COVID-19 and whether those efforts have been enough to keep essential workers safe on the job and adequate to support those who have been teleworking. Public workers have also begun to hold local organizing committee meetings to discuss what is required to work or return to work safely. From these meetings, they have developed a set of health and safety requirements, including proper personal protective equipment (PPE), improved communication from management regarding the COVID-19 pandemic, expanded and improved COVID-19 testing and engineering controls such as plexiglass barriers for those required to interact with the public. On June 13, representatives from the Arlington organizing committee presented a letter to the Arlington County Board laying out their health and safety demands and gave personal testimony about how to improve their workplaces. Workers are voicing their concerns and health and safety demands because they are not being adequately protected by their employers. Instead, employers are picking and choosing only those voluntary recommendations they want to follow and not necessarily what is needed to protect workers.

Given the continuing threat that COVID-19 poses to Virginia’s workers, the Board and VOSHA should move quickly to adopt an emergency temporary standard that requires employers to establish an infection control plan and take the necessary steps to ensure workers’ safety. Voluntary guidelines and recommendations focusing on COVID-19 have not and will not provide the level of protection workers need.

In adopting a final standard, we urge you to address the following issues:

·       Eliminate the proposed standard’s safe harbor that deems an employer’s compliance with CDC recommendations for mitigating SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by this standard as constituting compliance with the standard. The standard must be a mandatory requirement that supersedes any recommendations or guidelines.

·       Implement universal precautions, including transmission-based precautions for aerosol, contact and droplets for workers who come into direct or indirect contact with suspected or confirmed COVID-19 cases. As proposed, the standard focuses too heavily on respiratory droplet precautions. While transmission occurs mainly through respiratory droplets, it also happens through aerosols and contact from the droplets and aerosols that settle on surfaces, where they can remain viable for as long as several days.

·       Revise the proposed classification of employees by hazard exposure and job tasks used to determine which controls and protections an employer must implement. The proposed risk classifications do not accurately reflect current workplace infections and may not provide for movement between categories as conditions in the workplace change. Further, some hazards and job tasks are incorrectly categorized and should be reclassified to address the high risk of exposure in certain settings, especially during periods of community transmission.

·       Eliminate the serological test section (in §40 A) in the proposed rule. At this point, we do not have enough information about the reliability of antibody tests, including the degree to which they produce false-positive results or identify antibodies for other coronaviruses. Also, little is known about immunity or protection after infection by the virus, including the effectiveness of any immunity and how long it lasts. Given these uncertainties about antibody testing and immunity, we do not believe any potential gain from testing outweighs the risk that employers will misuse the test against workers. Therefore, we strongly urge the Board to eliminate this section completely.

·       Define occupational exposure as the state of being actually or potentially exposed to contact with SARS-CoV-2 virus disease-related hazards during the course of employment and not job tasks. Workers can be exposed to the virus while on paid break time, in a worksite cafeteria room and in other circumstances beyond the performance of specific job tasks.

·       Include in the final standard the anti-discrimination and anti-retaliation language included in the proposed standard.

·       If a COVID-19 vaccine becomes available in the future, provide for voluntary vaccination programs that make a safe vaccine available at no cost to the employee and at a reasonable time and place. Do not permit any form of retaliation against a worker who refuses to be vaccinated. The employer should ensure that employees who decline to accept a recommended and offered vaccination sign a statement for each declined vaccine.

Infectious Disease Preparedness and Responses Plan Recommendations

All employers should be required to create an Infectious Disease Preparedness and Responses Plan with the involvement of management, employees and employee representatives. The proposed standard does not require the involvement of employees and employee representatives. Therefore, we urge you to revise this in the final standard. The plan also should incorporate the following:

·       The employer and workers should conduct a job-exposure determination by occupation and activities. Management and worker involvement are crucial to identify workplace hazards in the assessment. The hazard assessment must be continuous as job activities and operations may rapidly change.

·       All employers should use engineering and administrative controls to mitigate the hazard. Following the hierarchy of controls, where engineering and administrative controls do not provide sufficient protection, the employer shall provide and ensure that employees use personal protective equipment.

·       Training.

·       Health screenings.

·       Reporting of exposure or incident.

·       Recordkeeping.

·       Anti-discrimination and anti-retaliation provisions.

·       Plan evaluation.

Engineering Controls

Personnel who transport a COVID-19 case or suspected case in a vehicle needs a solid partition that separates the passenger area from the area where employees are located.

Administrative Controls

In addition to the proposed administrative controls, we urge an additional requirement that employers implement adequate staffing levels to work safely. Employers must also incorporate rests and shift breaks to avoid worker fatigue during the pandemic. Wearing PPE can be extremely physically taxing; workers who need to wear PPE ensembles for long periods of time should be given breaks and relief when needed. PPE stock and supplies need to be available for workers to use for possible surges. Stockpile plans need to be in place to ensure PPE and supplies are readily available and accessible. Front-line public service workers are critical to fighting this pandemic and re-opening our economy; in the past several months, many have lacked adequate PPE because of shortages and unpreparedness by some employers.

Health screenings are used to monitor at-risk workers for illness and to manage those who develop symptoms. The daily health screening should be on paid time completed at each shift for each worker before they enter the facility. The health screening should include temperature checks and a respiratory health questionnaire. 

The proposed standard is not consistent in how each category in the exposure risk level (very high, high, medium, low) is controlled and makes egregious exclusions. For example, in health care settings which are considered very high/high risk, the proposed standard requires employers to provide alcohol-based hand sanitizers containing at least 60% ethanol or 70% isopropanol to employees at fixed worksites and to emergency responders and other personnel for decontamination in the field when working away from fixed work sites. However, this is not required for workers in the medium exposure risk level.

Personal Protective Equipment  

PPE is the last line of defense and should only be considered after exhausting engineering and administrative controls. The equivalency of surgical masks and respirators must be avoided in the proposed standard text. The listing of PPE selection in the proposed standard needs to be corrected to only list PPE such as gloves, gowns, goggles and respirators (N95 are the minimum). Surgical masks, procedure masks, dust masks and face masks are not considered respirators and therefore are not respiratory protection. Surgical masks and face coverings are not designed to filter particles or provide a seal against the wearer’s face to prevent leakage. Under the NIOSH classification system, an N95 respirator is the minimum level of respiratory protection (NIOSH Approved Particulate Filtering Facepiece Respirators, https://www.cdc.gov/niosh/npptl/topics/respirators/disp_part/default.html).

Training

Employers should ensure that all workers, regardless of occupational exposure, participate in a training program. The employers should provide training at the time of initial assignment and at least annually thereafter, not to exceed 12 months from the previous training or when changes affect the employee's occupational exposure or control measures. When workers are trained, the training material must be appropriate in content and vocabulary to the education level, literacy and language of employees being trained. Every training program should include an opportunity for interactive questions and answers with a person who is knowledgeable in the subject matter of the training as it relates to the workplace that the training addresses and who is also knowledgeable about the employer's plan.

Recordkeeping

Recordkeeping is an important component of a standard as it provides opportunities for program improvements. The proposed standard is missing any form of recordkeeping and should require employers to maintain the following records:

(1)  Medical records and COVID-19 Exposure Logs.

(2)  Training records. Training records should include the following information:

(3) Records of implementation of the Infectious Disease Preparedness and Responses Plan.

A. Records of an annual review of the Plan.

B. Records of exposure incidents should be retained. These records should include: the date of the exposure incident; the names, and any other employee identifiers used in the workplace, of employees who were included in the exposure evaluation; the disease or pathogen to which employees may have been exposed; the name and job title of the person performing the evaluation; the date of the evaluation; and the date of contact and contact information for any other employee who either notified the employer or was notified by the employer regarding potential employee exposure.

C. Records of stockpile (inventory) and availability of PPE should also be maintained.

Workers are stepping up to the plate by continuing to serve their communities during this pandemic. In the past, Virginia adopted state standards that go beyond the federal OSHA standards when it recognized hazards for confined spaces in the telecommunications industry and tree trimming operations. We applaud Virginia for recognizing COVID-19 as a health hazard to all workers. We urge the Board to continue to make strides for worker protections and take immediate action to protect workers from COVID-19 by issuing and enforcing the Infectious Disease Prevention Standard. AFSCME District Council 20 appreciates the opportunity to provide these comments. If you have any questions, please feel free to contact me.

Andrew Washington

Executive Director

District Council 20, AFSCME 

100 M Street SE Suite 250

Washington DC 20003

Office 202.234.6506

Fax 202.234.6531