The National Council for Occupational Safety and Health (National COSH) is an independent, non-profit organization that promotes worker health and safety through training, education, and advocacy.
National COSH is pleased to submit these supportive comments and suggestions for the Codes Board to consider in its deliberations. We strongly support the approval of this proposal as a standard and not as a regulation. As an emergency temporary standard, it will then become a permanent standard within six months. Workers in Virginia need a permanent standard in place to address the hazards of exposure to SARS-CoV-2. After all, we still do not know how long this pandemic will last, how many “waves” it will have, and when or if an effective vaccine will be available.
With regard to scope, Section 10 B includes all employers, employees, and places of employment in Virginia under the jurisdiction of the VOSH program. We strongly support this requirement. This broad scope is essential since every worker and workplace in Virginia is at risk from the virus and all workers must be protected by this standard.
Section 10 D(2)(b) regarding how employees can be exposed should acknowledge close-range aerosol transmission and medium to longer-range airborne transmission as significant exposure routes in addition to droplet transmission and contact with surfaces. There is increasing and substantial evidence of aerosol and airborne transmission of SARS-CoV-2. (See references at end of document).
Workers must be protected from all routes of transmission, including aerosolized and airborne particles. This requires respiratory protection to prevent inhalation of the virus. Surgical/medical procedure masks reduce potential transmission from the exhalation of the wearer; they do not provide respiratory protection to the wearer. N95 disposable respirators prevent inhalational exposure of the wearer and exhalational transmission by the wearer. This section and all provisions for assessment and protective measures in the standard should be changed to acknowledge the aerosol/airborne exposure route, including requirements for respiratory protection to address inhalational hazards.
Section 10 (G) should be removed in its entirety. CDC guidelines are not standards or requirements but rather are only suggestions that employers and enforcement agencies can opt to ignore. The provisions contained in this emergency standard should be requirements that employers must follow. These provisions should be consistent with accepted occupational health and safety principles and with other VOSH requirements for healthy and safe workplaces. Where CDC guidelines are less protective than the provisions in this emergency standard, the current provision would effectively permit some workplaces to implement lesser protective measures than are applied in other similarly at-risk workplaces, based solely on employer whim. This is not an acceptable situation and can only be addressed by removing this provision.
Section 30 definitions for “exposure risk level” warrant revision. These definitions do not reflect current knowledge about workplaces that have experienced significant COVID-19 infections and fatalities. For example, major outbreaks have occurred and continue to occur in correctional facilities, skilled nursing facilities, and meat packing plants, effectively making them “very high” risk workplaces. However, they are not so defined in the proposed standard and instead fall, incorrectly, in the “medium risk level”. This is a significant flaw in the way exposure risk level is defined in the proposed standard, i.e., grouping industries arbitrarily into exposure risk categories. This process seriously underestimates risk in workplaces that have become epicenters of infection. As a result, requirements that employers implement engineering, administrative, and work practice controls are minimized and employee protections are undermined.
As a remedy, we recommend additional and specific emphasis throughout the standard on hazard assessment, as defined in Section 40. A. 1. This would decrease sole reliance on arbitrary exposure risk categories that may inadvertently fail to identify workplaces with significant actual or potential infection. It would promote a more accurate understanding of workplace conditions while expediting proactive response to changing conditions that may be elevating risk to workers.
The definition of “face shield” in Section 30 states that it is designed to protect the face of the wearer from “airborne particles”. This is not correct and may cause confusion. Face shields protect the wearer against exposure to splashes, sprays, and large droplets. Face shields do not protect the wearer against inhalational exposure to aerosolized or airborne infectious particles, for which the appropriate minimal protection is NIOSH-certified N95 disposable respirators.
We strongly support the definition of “Surgical/Medical procedure mask” in Section 30. It acknowledges that it is a form of personal protective equipment that protects the wearer from large droplets, splashes, and sprays but not from inhaling “smaller airborne particles” and that it is not considered respiratory protection equipment. This is a very important definition to retain unchanged in the emergency standard as surgical masks have been improperly used by some employers as respiratory protection during the COVID-19 outbreak.
Section 40 A(7) covers notification to the employer of a positive COVID-19 case in a workplace. It does not address any requirement for the employer to notify Virginia OSHA, VA Department of Health, or any other state government entity. Employers should be required to keep a log of all COVID-19 cases and fatalities that have occurred among its employees. Any case of an employee who is positive for COVID-19 or has died from COVID-19 that is work-related must be recorded on the OSHA 300 log as required by the recordkeeping rule. The work-related fatality must also be reported to VOSH within 8 hours of the employer knowing of the death. Likewise, if there is an outbreak in a workplace [one case or more], both VOSH and the Department of Health should be notified.
In addition to the recording and notification suggested changes we recommend above to Section 40 A(7), any case of a positive COVID-19 case should be followed up with contact tracing among other employees who have had contact with the infected individual.
We suggest adding a new provision to Section 40 covering access to vaccine and vaccination. If and when a safe and effective vaccine is developed for SARS-CoV-2, and since the workplace is a major source of exposure to the virus, the employer should be required to make the vaccine available to, but not mandatory for, workers. The bloodborne pathogens standard, 1910.1030(f)(2), includes language that can serve as a template, with minor modification.
Section 40 D(1)(c) does not define “wipe down.” This sentence should be revised to specify cleaning, disinfection, or both, and the method(s) to be utilized. 40 I(2) and (4) inaccurately conflate “clean” with “disinfect” and should be revised. 40 I(6) should encourage the use of less hazardous List N disinfectants and should reference guidance from the University of Washington, Department of Environmental and Occupational Health Sciences (https://osha.washington.edu/sites/default/files/documents/FactSheet_Cleaning_Final_UWDEOHS_0.pdf).
Section 50 A(1)(b) should also reference the May 2020 ASHRAE document “Guidance for Building Operations during the COVID-19 Pandemic” (https://www.ashrae.org/file library/technical resources/ashrae journal/2020journaldocuments/72-74_ieq_schoen.pdf). Section 50 B(6) offers medical monitoring for “very high” and “high” exposure risk groups. This requirement should include the “medium” exposure risk group as well. Workers in this risk group are being infected, sometimes widely, as noted above. Section 50 B(7) requires for “very high” and “high” exposure risk groups “job-specific education and training on preventing transmission of COVID-19, including initial and routine/refresher training”. This training should also be provided to all workers as they are at risk for being infected with SARS-CoV-2.
Section 50 C(4) provides requirements for implementing a comprehensive respiratory protection program for “very high” and “high” exposure risk groups. This provision needs to be extended to include the “medium” exposure risk group. Section 50 C(5) states that workers in very high or high exposure risk groups “shall be provided with and wear gloves, a gown, a face shield or goggles, and either a surgical/medical procedure mask or a respirator when in contact with or inside six feet of patients or other persons known to be, or suspected of being, infected with SARS-CoV-2.” Because this is an aerosol/airborne transmissible disease, in this context respirators rather than masks should be provided to workers. A surgical/medical procedure mask is not a respirator and will not provide respiratory protection. This provision should be modified to reflect this essential difference.
Section 70 A(2), requires a written infectious disease preparedness and response plan for all very high and high exposure risk categories. In the medium risk category, it covers only employers with 11 or more employees. This exception is not science-based. Workers in the medium exposure risk category who work in smaller workplaces are just as likely to become ill and infectious as workers in larger workplaces, under similar conditions. We recommend eliminating the employer size exemption.
Section 80, on training, warrants clarification and expansion. Clarification includes ensuring that Section 80 A, which covers “very high” and “high” exposure risk, also covers “medium” exposure risk as explicitly stated in 80 C. This section needs to expand by including training for the “lower” exposure risk group. These workers do have some risk of contracting the virus; although their risk is lower it is not zero. Finally, 80 B(5) should read “cleaning, sanitizing, and disinfecting procedures”.
In summary, National COSH thanks the Virginia Safety and Health Codes Board for its proactive work on proposed 16 VAC 25-220. We strongly support approval of this proposal as a permanent standard. We urge the Codes Board to consider the recommendations we present above and to incorporate them into the proposed standard. We join you in the commitment to ensuring the health and safety of Virginia workers and of the broader Virginia community.
References:
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