BGA Support for a Permanent Standard: No Safe Harbor in a Guidance Fog
The BlueGreen Alliance, a coalition of the nation’s largest labor unions and environmental organizations, collectively representing millions of members and supporters, supports the adoption of 16VAC25-220, Proposed Permanent Standard Infectious Disease Prevention.
To date, more than 3,000 Virginians have died because of COVID-19. Some not yet defined portion of the more than 140,000 men, women and children in the Commonwealth who have been infected by the virus will have long term cardiac and lung damage. The harm that COVID has already caused and the potential for an overpowering new wave of infection as the weather turns cold are the life-saving reasons to praise the emergency temporary standard and urge the promulgation of a permanent standard for infectious disease prevention based on the language of the ETS.
We ask DOLI and the codes board to resist the effort of the Chamber of Commerce and some industries to add additional safe harbor language. The use of the terms “consider, may chose, encourage, should, and recommend” in the guidance documents issued by CDC and US OSHA leaves employers and workers without any clear framework for COVID safety. How can a worker or an employer determine what is needed for “a safe and healthful workplace” when US OSHA states in their March 2020 Guidance on Preparing Workplaces for COVID-19 that, “The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace.” This language may result in two long term care facility owners, two meatpacking corporations or two shipyard operators using CDC and OSHA guidance documents to consider and choose very different COVID safety procedures. In Virginia, the ETS sets out a well-defined set of steps that all workplaces must take to protect all employees from COVID-19. This clarity levels the playing field and provides protection for all workers, not just those lucky enough to have an employer who has voluntarily determined to strictly follow the CDC and OSHA advice.
The impossibility of clearly defining what following CDC and OSHA guidance actually means makes a “safe harbor” for employers who follow CDC and OSHA guidance unenforceable and dangerous. A Virginia meat or poultry plant could argue that they deserve safe harbor status because they followed the Interim Guidance from CDC and OSHA to consider engineering controls and social distancing even if their consideration led the facility’s decision makers to do nothing about either of these important safety measures.. The “provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard” language in the proposed permanent standard is essential to the efficacy of the rule.
Virginia is charting the path that all states and the federal government should be taking. The BlueGreen Alliance thanks you for your leadership.