Mr. Jay Withrow
Director
Division of Legal Support, ORA, OPPPI, and OWP
Virginia Department of Labor and Industry
Commonwealth of Virginia
600 E. Main Street, Suite 207
Richmond, VA 23219
RE: 16 VAC 25-220 Emergency Temporary Standard: Infectious Disease Prevention: SARS-Co-V-2
Dear Mr. Withrow:
On behalf of Migrant Clinicians Network (MCN), I am writing to I am support the Virginia Occupational Safety and Health Program’s (VOSH) proposal to adopt a standard that would require employers to control, prevent, and mitigate the spread of COVID-19 to and among employees.
MCN is a national nonprofit organization with over 10,000 constituents dedicated to improving the health of immigrant workers and their family. MCN’s mission is to create practical solutions at the intersection of vulnerability, migration, and health. Since 1984, MCN have been providing technical assistance, conducting research, developing and distributing much-needed resources, advocating for vulnerable workers and their families and clinicians and implementing programs that support immigrant and migrant health and worker health and safety.
We support the VOSH proposal and agree with VOSH that the standard should apply to all industries and occupations. We greatly appreciate that VOSH is taking a leadership role to adopt a standard that sets a high bar for other states to protect the nation’s workforce. Our specific comments on the VOSH proposal are as follows:
1) Adopt occupational protections from COVID-19 in the form of a standard and not in the form of a regulation to ensure the protections are both permanent and enforceable.
2) The CDC guidelines do not place any responsibility on employers to take any action whatsoever and uses phrases such as “if feasible” and “if possible” are used more than a dozen times. If the Board retains this provision, it will be giving employers in Virginia an option: comply with a VOSH standard or ignore it if you want to. We urge the Safety and Health Codes Board (Board) delete this provision.
On Page 6, paragraph G, delete the provision that to allow employers to substitute compliance “with requirements in CDC publications to mitigate SARS-CoV-2…” for compliance with a VOSH standard on COVID-19. The proposal refers to the CDC guidelines as “requirements,” but they are not “requirements.” They are merely guidelines. Page 6, Paragraph G would undermine a VOSH standard and fail to provide the necessary protections for workers.
3) When an employee has a confirmed case of COVID-19, require reporting and recordkeeping. We suggest the following wording: When an employer is notified or learns that an employee has a confirmed case of COVID-19, the employer is required, within 24 hours, to notify the appropriate state or local health department, as well as any co-workers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.
4) Emphasize the hierarchy of controls. The standard must be consistent with the hierarchy of controls. The proposal recognizes the primacy of engineering controls, but should stipulate that administrative controls take precedence over personal protective equipment. (See Page 21, (F))
5) The proposed standard should be amended to more explicitly state an employer’s duty to regularly conduct a hazard assessment of their establishment, and institute control measures to address those hazards using the hierarchy of controls. The standard could additionally include a list of specific tasks (e.g., intubation, some dental procedures) that would automatically be classified as “Very High” risk.
Page 4, Paragraph D, refers to the "Exposure Risk Level" and lists factors to be used by employers to determine the risk level (see D(1), D(2)a and D(2)b). This suggests a requirement for employers to conduct a hazard assessment. However, beginning on Page 9, the proposed standard lists specific occupations and industries that fall into one of four exposure risk categories.
The list beginning on Page 9 confounds the provisions in D(1), D(2)(a) and D(2)(b). Moreover, some of the industries classified in the proposal as “Medium” risk level (page 11), such as poultry, meat, and seafood operations, and correctional facilities, have been the site of significant work-related outbreaks. Using the hazard assessment approach, in contrast, responsible employers in these industries would have recognized that their inability (or unwillingness) to implement physical distancing increased the risk of exposure in their establishments.
6) Amend Page 5, Provision 10(D)(2)(b): The description should refer to “airborne transmission” as a route of exposure. Airborne transmission is broader than the risk of droplets-containing SARS-CoV-2 and includes aerosols containing SARS-CoV-2.
7) Page 33, Section 80: Amend: All employers should be required to provide training to their employees with respect to COVID-19. A basic level of training should be provided to all employees (e.g., Section 80(B)1-7)). A workplace classified as “low risk” could easily become higher risk and the situation could be compounded because no hazard awareness training was provided by the employer.
Additional mandatory topics, such as the employer’s Infectious Disease Preparedness and Response Plan” should be included when hazards or job tasks are classified in the “Medium,” “High,” and “Very High” exposure risk levels.
8) Page 35, Section 90: We support the proposed provision on protecting employees from exercising their safety and health rights. We recommend the provision be strengthened with explicit language to include discrimination protections for employees who have tested positive and those who have been exposed to COVID-19.
MCN greatly appreciates that VOSH is taking a leadership role to adopt worker health and safety protections for COVID-19. We are encouraged that the Commonwealth of Virginia will be setting a high bar for other states to protect the nation’s workforce.
Sincerely,
Amy K. Liebman, MPA
Director, Environmental and Occupational Health
Migrant Clinicians Network