Comments on 16VAC25-220, Proposed Permanent Standard Infectious Disease Prevention: SARS-CoV-2 Virus
Stericycle, Inc. (Stericycle) appreciates the opportunity to submit comments to the Commonwealth of Virginia Department of Labor and Industry (the Department) on 16VAC25-220, Proposed Permanent Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the Standard). Stericycle is a publicly traded corporation (NASDAQ: SRCL) based in Bannockburn, Illinois. In 2019, we had estimated revenues of approximately $3.3B. Our services include compliant collection, transportation and treatment of medical waste, collection/disposal of pharmaceutical waste, and consulting/training programs to help educate our customers on the proper handling of these regulated waste streams. In the Commonwealth of Virginia, Stericycle operates a Regulated Medical Waste (RMW) transfer station in Richmond, secure document destruction facilities in Chantilly, Ashland, and Hampton, as well as mobile document destruction facilities in Salem and Waynesboro. In all there are approximately 114 employees in the state throughout our different divisions servicing Virginia businesses. Our corporate vision is to be leaders in “Protecting What Matters.”
Overall, we appreciate the concern that the Department has for employees that could be exposed to SARS-CoV-2, the virus that causes Coronavirus Disease 2019 (COVID-19). We share the same concern and had already put together plans and requirements for our employees to follow, many of which are like those in the Standard. However, we do have some concerns with the Standard and respectfully submit the following comments.
Comments/Suggested Edits to Definitions
- "Exposure risk level” means an assessment of the possibility that an employee could be exposed to the hazards associated with SARS-CoV-2 virus and the COVID-19 disease. The exposure risk level assessment should address all risks and all modes of transmission including airborne transmission, as well as transmission by asymptomatic and presymptomatic individuals. Risk levels should be based on the risk factors present that increase risk exposure to COVID-19 and are present during the course of employment regardless of location.
- Stericycle Comment: This definition of “Exposure risk level” should include all examples of modes of transmission, airborne, droplet, and contact. Assessing risk related to these modes of transmission should be the primary focus, rather than potential transmission by asymptomatic or presymptomatic individuals. This sets an unrealistic expectation for the employer to know who would be asymptomatic or presymptomatic. The key for evaluating exposure risk level and identifying the elements is to set up the hierarchy of controls. This is best accomplished through looking at the modes of transmission. We propose that the new definition should state “Exposure risk level means an assessment of the possibility that an employee could be exposed to the hazards associated with SARS-CoV-2 virus and the COVID-19 disease. The exposure risk level assessment should address all risks and all modes of transmission including airborne transmission, droplets, and contact. Risk levels should be based on the risk factors present that increase risk exposure to COVID-19 and are present during the course of employment regardless of location.”
- "May be infected with SARS-CoV-2 virus” means any person not currently a person known or suspected to be infected with SARS-CoV-2 virus and not currently vaccinated against the SARS-CoV-2 virus.
- Stericycle Comment: This definition and all uses should be removed from the Standard. This definition essentially defines the majority of the population and should not be included or referenced in the Standard as it is overly broad and overreaching.
- "Occupational exposure” means the state of being actually or potentially exposed to contact with SARS-CoV-2 virus or COVID-19 disease related hazards at the work location or while engaged in work activities at another location
- Stericycle Comment: Remove “potentially exposed” from this definition as potential exposure should not be equated to “occupational exposure”. If all potential exposures to hazards were to be defined as “occupational exposures”, employers would need to constantly report each “near miss” by an employee (eg. an employee almost cut themselves, or they tripped but didn’t hurt themselves, etc.). Reporting of “near miss” or “potential incidents” is not a condition that is required today; additionally, considering the unknowns about the modes of transmission and spared of this virus, it would be impractical for employers.
- "Suspected to be infected with SARS-CoV-2 virus” means a person who has signs or symptoms of COVID-19 but has not tested positive for SARS-CoV-2, and no alternative diagnosis has been made (e.g., tested positive for influenza).
- Stericycle Comment: Remove this term and all uses in the Standard. If a patient didn’t test positive for SARS-CoV-2, that likely means they are not infected and thus should not be “suspected to be infected”. If they didn’t test, but have symptoms related to COVID-19, this definition and its later uses imply that the employer must treat them in the same way as an employee that has tested positive for COVID-19. It is reasonable for an employer to have screening measures and plans in place should employees exhibit COVID-19 symptoms, but, treating these employees as though they have been positively diagnosed with COVID-19 could be perceived to be discriminatory. Also, there are many COVID-19 symptoms that are similar to influenza and other illnesses, until more is known about the virus and the disease it causes, treating those with these similar symptoms as though they are COVID-19 positive is not reasonable.
Additionally, the term “hazard assessment” is used throughout the document but is not defined. We recommend using the term “job safety analysis” instead of “hazard assessment” and defining the term in the definitions section, as this is the term used to comply with current regulations. Though assessing the hazards in a workplace is helpful, it is better to look at specific employee tasks when evaluating risk, determining PPE requirements, etc. The term “hazard assessment”, as we understand, it is too broad as it only prescribes the hazard. A job safety analysis looks at a specific task to then assign measures to mitigate, eliminate, or reduce the hazard.
Reporting of Positive Cases
Section 16VAC25-220-40(B)(8) prescribes requirements for reporting of positive cases. We have concerns with Subparagraphs (d) and (e) which require notification to contact government agencies (the Department and the Virginia Department of Health). Where there is a positive case of COVID-19, it should be the responsibility of the employee or their physician to contact these agencies, unless the employee contracted the virus at their workplace. If the employee did not contract the virus at their workplace, the workplace should not be responsible for reporting the case. A similar situation, for reference, would be if an employee injured themselves outside of work; even if the injury impacts their work, for example a driver broke their leg skiing and cannot drive due to the injury, this situation is not reportable to the Federal Occupational Safety and Health Agency (OSHA) or the Department today. Due to how the disease is spread, it remains difficult to determine whether an employee contracted the disease at work or outside of work through interaction with their family and/or community; the current wording potentially assumes that an employee contracted the disease at their workplace which is not reasonable. Additionally, Subparagraph (c) requires notification of a positive case to building owners; this section should be re-worded to focus on buildings with multiple employers/tenants as it would be extraneous to notify a building owner if only one tenant occupies the building.
Comments Regarding Infectious Disease Preparedness and Response Plan
Section 16VAC25-220-70 outlines requirements for Infectious Disease Preparedness and Response Plans. We have concerns with the following subsections:
C(3)(a)(iii) – This section specifies that employers consider situations for their plan where employees work more than one job or engage in tasks that present a very high, high, or medium level of exposure risk. We question the legality of asking employees about additional jobs and recommend that this section be stricken.
C(3)(b) – This section specifies that employers consider individual risk factors of their employees; number of health conditions are then listed. This entire section should be stricken as it is in conflict with privacy laws (such as HIPAA) and could put employers at risk.
Finally, we ask that the Department include a template to assist the regulated community in developing their plans. C(3)(a)(iii) and C(3)(b)
We agree with the Department on requiring employee training related to COVID-19. Section 16VAC25-220-80(E) outlines situations where retraining is required, however, it does not specify how soon retraining must be done nor does it specify what must be included in the training. For example, if an employee does not understand a specific component of the training they received, do they need to be retrained on that specific component, or, go through the entire training again? Also, would new information that is learned on COVID-19 or SARS-CoV-2 warrant retraining? Finally, the Department should consider that some employees may purposely choose to not follow the training and employers should be able to document evidence of such circumstances as constant retraining would prove futile.
We appreciate the opportunity to comment on the Standard. If you have any further questions or comments please feel free to contact me at 312-720-6213 or via email at email@example.com or Selin Hoboy via email at firstname.lastname@example.org.
Director, Regulatory Affairs
CC: – Selin Hoboy, Vice President, Government Affairs and Compliance, Stericycle, Inc.