16 VAC 25-220, Emergency Temporary Standard/Emergency Regulation

Thank you for the opportunity to comment on the Virginia Department of Labor and Industry’s recommended Emergency Temporary Standard/Emergency Regulation, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19.  With a membership representing nearly six-hundred (600) construction firms in Virginia, The Associated General Contractors of Virginia (AGCVA) is committed to protecting employees and communities from exposure to COVID-19.   As this crisis has developed, AGCVA members have implemented best management practices and specific controls to protect the health and safety of our industry’s greatest asset, our workforce.  These practices and controls were initially implemented and have continually evolved based on the specific, real time guidance issued by the CDC, VDH and OSHA.   While these regulations may have good intention, as proposed they will introduce uncertainty and inconsistency and threaten to undermine the initiatives already in place. We recognize the challenge of quickly creating a regulation that covers all industries while maintaining clear and consistent protocols and hence, rather than mandate through regulation, we encourage VOSH to provide resources, training, and guidance to help employers develop business specific COVID-19 infectious disease preparedness and response plans.  

We ask that you consider the following general issues with the proposed emergency regulations:

1. Emergency Regulations with limited public review time and vague timelines are not the most appropriate or effective avenue to address worker safety during these current events.  Detailed guidance and/or training would be more appropriate and effective. 
2. We encourage the State to partner with and support its’ employers in developing effective, prevention plans rather than create further obstacles through forced regulatory compliance.
3. Many Virginia Construction Businesses have already developed best management practices and implemented infectious disease response plans to ensure worker safety in accordance with VDH, CDC and federal OSHA guidelines.  At the very least any regulation should closely align with these guidelines and provide for future flexibility as the situation continues to develop.
4. Federal OSHA has recognized that employers must take “good faith” measure to prevent employee exposure to COVID-19.  Employers who have not executed “good faith” measure and have substantially contributed to employee exposures or not implemented reasonable exposure control measures could still be cited under general duty criteria, thus still allowing an enforcement mechanism without a specific standard to further administratively and financially burden employers who have already been great impacted by the COVID-19 pandemic.
5. Construction and service companies, which have employees spread across many “places of work” (jobsites) over which they often have no control (i.e. the Owner or a higher tier contractor physically controls the site), present unique scenarios that are not easily addressed by generic regulations written to cover businesses in general, such as these.
6. Indoor and outdoor construction is defined as medium risk.  In the Construction Industry, risk level varies by job task and location, and often could fall into the low risk category.
7. While mandating that the appropriate PPE is required in certain scenarios, these regulations provide no guidance on what that appropriate PPE is. Specifically, the regulations often reference compliance with industry standards in certain scenarios for which there may not be an industry standard.
8. Knowledge of COVID-19 is continually evolving.  Information regarding symptoms, severity and spread change on a daily basis. At this point, regulations would create inflexibility.  Again, providing detailed guidance would be more effective.
9. The regulations lack a clear timeline of how long an employer has to comply or how quickly they have to react to regulatory changes.

Furthermore, specific language within these regulations will create further uncertainty and inconsistencies in the response to COVID-19.  Specifically:

1. On Page 8, § 30,  “Duration Exposure” refers to "extended period of time" but does not define such
2. On page 13, § 30, “Feasible” cannot be defined as both “technical” and “economic”.  Something can be technically feasible but not economically feasible at the same time.
3. On page 13, § 30, the “Known COVID-19”, definition establishes an impossible standard because the employer “should have known” that the person tested positive.
4. On page 13, § 30, the “May be infected with SARS-CoV-2” definition presents a vague scenario that could apply to a large portion of the workforce.  A definition for close contact including a distance and exposure time should be incorporated.
5. On page 14, § 30, the definition for “Physical Distancing” requires a “permanent, floor to ceiling wall”. This is excessive as temporary barriers have been built to retrofit existing work space conditions and easily serve the same purpose as permanent walls.
6. On page 16, § 40.A.3, “Employers shall develop and implement policies and procedures for employees to report when they have tested positive for anti-SARS-CoV-2 antibodies through serologic testing.”  A requirement for an employee to notify employers they have developed “antibodies” is invasive from a privacy standpoint.  Furthermore, there is no certainty that serologic testing is readily available to the average Virginia resident or even that it is entirely accurate.
7. On page 18, § 40.A.#7 requires employers to inform its entire workforce of a COVID-19 positive test.  A limited disclosure to employees who may have been exposed through close contact would be more appropriate.  Specifically for construction, employees may work at different jobsites and it could be definitively determined that they never came in contact with a positive case at another jobsite.
8. On page 28, § 60.A.#1 - Incorporating HVAC systems maintenance and functionality into the regulations is concerning and little more than a liability trap.  Employers who lease space often do not have control over the HVAC systems and for those that do, the process of proving their systems comply with the regulations will be time consuming and costly.
9. On page 32, § 70.C.#2.iii – While contingency planning is encouraged as good business practice, it should not be mandated by State Regulations.

Accordingly, The Associated General Contractors of Virginia respectfully requests that you reconsider adoption of these regulations at this time and instead partner with Virginia’s Construction Industry in establishing sound guidance and practices to counter this pandemic.  Thank you for your consideration.