COMMENTS

Proposed Permanent Standard for Infectious Disease Prevention, SARS-CoV-2 Virus That Causes COVID-19

NiSource/Columbia Gas of Virginia is a party interested in the promulgation of the referenced Standard/Regulation and offers the following as public comment:

Comment 1 [Page 24, 16 VAC25-220-40B.8.d.]

The term “outbreak” is not defined and, as such, is open to different interpretations.  For instance, is an outbreak when the worksite experiences two or more confirmed cases of COVID-19?  If so, during what time frame?  A 5-day period?  A 10-day period?  A 14-day period? The term “outbreak” should be defined in the Proposed Permanent Standard, particularly given that the Standard uses the term in multiple places.  See, e.g., 16 VAC25-220-40B.8.d., 16 VAC25-220-50B.8.c.5, 16 VAC25-220-70C.4.

Also, when will the Local Health Department close an “outbreak”?  When there have been no new cases for a period of 10 days or 14 days?  In the same vein, how will the Local Health Department put the employer on notice that it deems the “outbreak” closed?  Via written notice to the employer?  Other means?  It is important to address this issue because the Local Health Department’s practice has not been to issue any formal notice that an “outbreak” is closed. 

The Permanent Proposed Standard should define when and how the Local Health Department will close an “outbreak.”  This will ensure that employers are clear on when the Local Health Department has closed an outbreak, thus terminating the employer’s obligation to report every confirmed case of COVID-19 to the Local Health Department amidst an “outbreak.”  See 16 VAC25-220-40B.8.d. (“Employers shall continue to report all cases until the Local Health Department has closed the outbreak. After the outbreak is closed, subsequent identification of two or more confirmed cases of COVID-19 during a declared emergency shall be reported, as above.”).

Comment 2 [Page 26, 16 VAC25-220-40C.1.]

The language added under Comment 56 to the Proposed Permanent Standard lacks specificity.  It starts by saying “a limited number of employees with severe illness may produce replication-competent virus beyond 10 days”, and that this “may warrant extending duration of isolation up to 20 days after symptom onset.” It also states employees who are “severely immunocompromised may require testing to determine when they can return to work.”  Further, employers are instructed to “consider consult[ing] with infection control experts” regarding whether to require testing for “severely immunocompromised” employees before they return to work.

The Proposed Permanent Standard should be clear that the language added under Comment 56 is aspirational and recommended only to the extent feasible, or omit the language altogether, given that the requirements, as drafted, are arguably preempted, at least in part, by federal anti-discrimination laws.

If the language from Comment 56 is to remain and is meant to impose requirements on employers, the language needs to be clarified.  For example, how would an employer know of an employee’s severe illness, let alone a severe illness that produced replication-competent virus beyond 10 days?  And even if the employer had such knowledge, how is it to determine whether an isolation period of more than 10, and up to 20, days is warranted?  If the language from Comment 56 is to remain, it should make clear that employers are not obliged to assess the severity of an employee’s COVID-19 illness, or impose an isolation period of more than 10 days, unless they have (a) actual knowledge of a severe COVID-19 illness from the employee’s medical provider and (b) evidence from the employee’s medical provider that an isolation period of more than 10 days is required due to the presence of replication-competent virus.

Likewise, if the language from Comment 56 is to remain, it should make clear that employers are not obliged to require that severely immunocompromised employees who test positive for COVID-19 receive a negative COVID-19 test prior to their return to work, unless the employee’s medical provider submits evidence that the employee is severely immunocompromised as defined in the PPS and should receive testing before returning to work.  

Comment 3 [Page 28, 16 VAC25-220-40F.2.]

The Proposed Permanent Standard states that employers must provide and require that employees wear face coverings while occupying a work vehicle with other employees or persons.  It also states that employers should provide access to “fresh air ventilation (e.g., open windows, do not recirculate cabin air).”  Based on these instructions and the use of the non-inclusive “e.g.” or “for example”, it seems employers may satisfy their obligation to provide fresh air ventilation to employees riding together in a vehicle simply by (1) requiring the use of facial coverings and (2) not recirculating cabin air within the vehicle, particularly where it is not safe or feasible to open windows due to inclement weather.  The Standard should be clarified by addressing whether or not that is true. 

Comment 4 [Pages 41 and 51]

The Proposed Permanent Standard omits the heading for 16 VAC25-220-60 before subsection A at the top of page 41.  Similarly, the Proposed Permanent Standard also omits the heading for 16 VAC25-220-80 before subsection A at the bottom of page 50.  The headings should be the same as the Temporary Standard.