To the Virginia Safety and Health Codes Board:

As a company that has done our best to go above and beyond the recommended guidelines for operating during this pandemic, we respectfully request that this regulation (16 VAC 25-220) not be adopted.  With all of the guidance documents in place from the CDC, the VDH and OSHA, there is no need for a “one size fits all” regulation to be enacted.  This regulation is too broad and generalized in scope and will create unnecessary additional burden on small business and contractors such as ourselves.  There may be a need for extra guidance in certain industries but again, not one overall regulation.  The Virginia Department of Labor and Industry has enough tools in its arsenal to be able to effectively regulate safety and health related to COVID-19 at workplaces across the Commonwealth without enacting a new standard. 

10.G.  If an employer complies with CDC guidelines, then the employer is considered to be in compliance with this standard.  If this is the case, then no new standard needs to be promulgated.  In some instances, this proposed VOSH standard goes way beyond what is recommended by the CDC.  An employer would be better served to follow the CDC publications and thereby be considered to be in compliance.  In effect, that would make this standard unnecessary.

40.A.1. VOSH has already classified jobs by exposure risk level but then requires employers to conduct an additional assessment.  This is an unnecessary redundancy.

40.A.3.  This section is unclear but it appears that VOSH is requiring employers to make employees tell them when they have tested positive for antibodies.  This has the potential to lead to discriminatory practices against an employee.

40.A.5. VOSH is now requiring specific sick leave policies.  This is far overreaching.  Congress has already put leave policy requirements in place and VOSH does not need to step in this area.

40.A.7.  It would be an impossible task to try to contact everyone that has been at a place of employment or job site over a 14-day period.  This goes against CDC guidelines of contact tracing.  This could lead to wide spread panic and potential discrimination against the employee that tested positive. 

40.B.1.b.i. and 40.B.2.b.i. VOSH requires a return to work strategy.  If the employer chooses the test based strategy, VOSH says that an employee can choose not to follow it and must then be afforded an alternate strategy.  This creates unnecessary burden and can again lead to discrimination.  Why does the employee get to make this choice?  If the employer has taken the effort to put the program in place, then it needs to be consistently followed.  An employee should not get the option to disrupt the employer’s policy. 

40.C. How can an employer possibly ensure that physical distancing is observed at all times?  Some job functions will not even allow for this.  Forcing employers/employees to maintain physical distance will create additional safety issues and lead to injuries.

40.D.  It is almost impossible to ensure control of common areas across multiple work locations.  We can provide the training and the proper cleaning supplies but there is no way to monitor whether employees are following what has been laid out.  If we close the common areas/breakrooms, then we are potentially taking away the only place that employees have for the relief of the heat of the day and other adverse weather conditions.  This could be more detrimental to an employee’s health than the threat of contracting the virus.

Throughout this regulation, VOSH uses the phrase “to the extent feasible”.  Who gets to make the call on feasibility?  Is it the CSHO with no knowledge of the business? The Regional Director that does not have a grasp on the requirements of the industry?  The large corporation trying to save money?   The small business that can’t afford the requirements?  This phrase is very vague and lends to a practice of inconsistent enforcement.

60.A.1.  Requiring employers to put in new air handling systems or modify existing systems is far overreaching and potentially detrimental.  Are we expected to modify the systems in our offices and then also in every job site trailer?  

60.B.1.a  Many carriers of COVID-19 are asymptomatic. How does this screening stop an asymptomatic person from spreading the virus?  This is overly burdensome for an employer and is not proven to make any difference.

70.C.1.  Will an employer now need to hire an additional staff member with infectious disease knowledge?  What is the definition of knowledgeable?  This is another section that is very vague

80.A.  If as an employer we don’t have anyone classified over a medium risk exposure, we don’t have to do any training?  This section is very confusing.  As a medium risk exposure employer, as predetermined by VOSH, we have to create this lengthy program but have no requirement to actually train our employees on what we developed.  

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These standards appear to be requiring employers to become both doctors and infectious disease control experts. Most employers are already taking good faith efforts to follow all applicable protocols and guidelines.  An additional regulation will lead to hardship for employers and will likely lead to additional hardship for employees as well.  There are too many unknowns in regard to COVID-19.  Information regarding symptoms, severity and spread change on a daily basis.  Adopting anything other than a guidance document at this point is premature.

It is a known fact that VOSH does not have enough personnel and resources to properly inspect businesses throughout the Commonwealth from an enforcement perspective for the rules and laws that are currently in place.  We feel this continued lack of personnel and resources will lead to targeting of more readily accessible employers such as construction contractors.  Targeting such as this will not allow consistent enforcement across all industries.  Rather than attempting to adopt new regulations, VOSH should be coming up with program templates and additional guidance that the VOSH Consultation Division can use to help guide employers in ensuring safer work places for employees.

Again, we respectfully request that this new emergency standard not be adopted.