BEFORE THE VIRGINIA SAFETY AND HEALTH CODES BOARD

16 VAC 25-220

Revised Proposed Permanent Standard

Infectious Disease Prevention:
SARS-CoV-2 Virus that Causes Covid-19

Comments in Support of the Revised Proposed Permanent Standard by the
Amalgamated Transit Union

International President John Costa

The Amalgamated Transit Union (the “ATU”) submits the following Comments in strong support of the revised proposed permanent standard regarding infectious disease prevention and the SARS-CoV-2 virus that causes Covid-19 that is under consideration by the Virginia Safety and Health Codes Board (the “Board”). As the labor union representing bus, rail, and paratransit workers employed throughout Virginia, the ATU comes to the Board to present the pressing and immediate safety concerns of its Virginia members – just as the ATU did in October 2020 with regard to the proposed permanent standard concerning SARS-CoV-2.

The ATU supports the revised proposed permanent standard as an essential and urgently needed corollary to Virginia’s emergency temporary standard regarding SARS-CoV-2 and Covid-19. The emergency temporary standard has provided Virginia ATU members with substantially enhanced workplace protections in the areas of social distancing, information sharing with employers regarding SARS-CoV-2 and Covid-19, personal protective equipment (“PPE”), and sanitation, among others. However, the SARS-CoV-2 pandemic persists, as does the risk that ATU members will become infected and suffer severe health consequences – or even death.

While effective vaccines have arrived in Virginia, public health experts agree that it will be well into 2021 before essential workers like ATU members have universal access to them. It will be even longer before population-level immunity occurs, if it ever does. In the near term, experts predict that infection rates will increase. Meanwhile, the ETS will expire on January 26, 2021, leaving ATU members – and all working Virginians, along with their families and communities – unprotected unless this Board acts immediately to approve the revised proposed permanent standard.

The ATU stands with its labor movement allies, as represented by the AFL-CIO, in supporting the revised proposed permanent standard for the reasons that the AFL-CIO lists in its own comments to the Board. Further, the ATU would like to highlight the following:

The ATU urges the adoption of the proposed ventilation rules that focus on outcomes, not on third-party standards that do not work for all workplaces. The initial proposal for the permanent standard directed employers overseeing medium-risk worksites, like transit vehicles, to install air-handling systems that are consistent with certain standards developed by the American National Standards Institute (“ANSI”) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”). As the ATU stated in its comments regarding the initial proposal, these standards are designed for buildings – not for vehicles – and they do not ensure adequate ventilation for confined, mobile workspaces. The ATU called for an outcome-focused reimagining of ventilation rules for medium-risk worksites, along with a requirement for employers controlling such sites to ensure that their ventilation systems are equipped with air filters rated MERV-13 or higher.

In a positive development, the revised proposed permanent standard now includes just these types of rules. Section 16 VAC 25-220-60(B)(1) directs employers to maintain ventilation systems, increase clean airflow and outside air, limit filter bypass, and ensure the highest filtration levels that their ventilation systems can provide – up to and including MERV-13, where possible. While an employer still must abide by ASHRAE standards inasmuch as they apply to the worksites that the employer controls, it is clear that the revised proposed permanent standard shifts the emphasis of its ventilation rules to the specific ventilation outcomes that help to protect workers from SARS-CoV-2. By focusing employers’ attention and VOSH’s enforcement on outcomes instead of on third-party rules that do not apply to and are not protective in all workplaces, the revised proposed permanent standard offers substantial and effective protection to ATU members and other medium-risk workers. These important modifications to the initial proposal must be preserved.

However, additional ventilation improvements are necessary to keep transit workers safe. The revised proposed permanent standard recognizes, in Section 16 VAC 25-220-60(B)(1)(b)(ii), that ground transportation poses unique ventilation challenges and that transit workers have correspondingly unique needs when it comes to the ventilation changes that are necessary to protect them from SARS-CoV-2. As the revised proposal notes, these changes include increasing the flow of outside air into transit vehicles. The revised proposal suggests that employers open vehicle windows to increase outside airflow.

Far from protecting transit workers, however, the directive to open windows actually puts them at increased risk of infection. The ATU’s extensive research into transit vehicle safety, developed over more than a century of representing transit workers, reveals that due to the shape of transit vehicles, interior air travels from back to front while a vehicle is in motion. That is, the air – and any virus that it contains – travels directly toward the driver. If the driver’s window is open, this back-to-front airflow grows even stronger. The best way to ensure that the driver benefits from increased outside air is to keep the driver’s and passengers’ windows closed while opening the vehicle’s rear hatch, adjusting the driver’s air vents to blow fresh outside air (or modifying the vents to do so if the vehicle is not equipped with this feature), and operating the vents on high. These steps help to reverse the airflow within the vehicle so that fresh air travels toward the driver, and potentially contaminated air travels to the back of the vehicle and out the rear hatch. The attached ATU factsheet, entitled “Safe Service Now – Covid-19 Bus Airflows and Solutions” provides further information. This guidance should be incorporated into Section 16 VAC 25-220-60(B)(1)(b)(ii) – or, at the very least, the reference to open windows must be removed from that section.

Additionally, the applicability of Section 16 VAC 25-220-40(F)(2) should be expanded to cover not only workers who travel in shared vehicles but also those whose job duties include transporting members of the public. This section provides that when multiple workers travel together, the employer should not recirculate air within the vehicle cabin. However, Section 16 VAC 25-220-60(B)(1) does not include eliminating air recirculation among the steps that employers controlling medium-risk worksites must take to protect workers from SARS-CoV-2.

As the attached factsheet shows, ending air recirculation is vital to virus protection. Further, there is no rational basis upon which to offer workers greater protection in this regard when they ride in a vehicle together than when they ride with members of the public. This is especially true in light of the failure of the revised proposed permanent standard to direct employers to require members of the public to wear face coverings when entering worksites (like transit vehicles), while Section 16 VAC 25-220-40(F)(1) requires workers to cover their faces when they ride together. It is clear that employers must be required to eliminate air recirculation in all vehicles transporting workers, regardless of whether the vehicle in question provides transportation for groups of workers or transit for the general public.

In order to protect transit workers effectively, Virginia’s permanent standard regarding SARS-CoV-2 also must include these additional measures. Please see the ATU’s comments regarding the initial proposed permanent standard for further details.

• Require employers to install UV-C lights in vehicle and building ventilation systems whenever such lights would mitigate the spread of SARS-CoV-2.

• Require employers to install physical barriers to protect workers who must share a confined space with members of the public.

• Require transit employers to limit vehicle capacities to twenty-five percent of the ordinary maximum and to create passenger-free “buffer zones” between drivers and occupants, with an exception for passengers who need to use accessible seating near the driver.

• Require transit employers to utilize rear-door boarding, with an exception for passengers who need to use accessibility equipment attached to the front door of the transit vehicle.

• Require employers to place a vehicle out of service, and to clean and disinfect it thoroughly while providing proper PPE to the workers completing these tasks, whenever the vehicle has been used by any individual who subsequently tests positive for Covid-19.

• Direct employers to require that members of the public wear masks or face coverings whenever they visit worksites.

• Require employers controlling medium-risk worksites to use every effort to procure N-95 masks and to provide them to workers.

• Increase social distancing directives to a distance greater than six feet in order to account for the airborne spread of SARS-CoV-2.

• Increase opportunities for workers and their representatives to participate in hazard assessment and safety planning processes.

• Expand medical removal provisions to cover workers who know that they have been exposed to SARS-CoV-2 and those who reasonably believe themselves to have been exposed.

• Require employers to maintain workers’ pay, benefits, and seniority when workers must be absent due to Covid-19 diagnosis or symptoms, or due to SARS-CoV-2 exposure or suspected exposure.

• Clarify employers’ contract tracing responsibility to explain that when a worker tests positive for Covid-19, the employer must determine the worker’s contacts at the worksite in order to identify and notify those who might have been exposed.

• Require employers to collect reports of suspected Covid-19 cases, known exposures, and suspected exposures within the workforce; to determine these potentially infected workers’ contacts at the worksite; and to notify the contacts of their potential exposure.

• Require employers to give workers paid time and appropriate PPE with which to complete the cleaning and disinfection tasks mandated by the revised proposed permanent standard.

The emergency temporary standard has provided essential SARS-CoV-2 protections to ATU members in Virginia since the standard’s promulgation. Yet ATU members continue to contract and die from Covid-19, and the emergency temporary standard will remain in effect only for eighteen more days. Just as the pandemic persists, so must Virginians’ workplace protections. The ATU therefore urges this Board to adopt a permanent standard that both preserves the vital safeguards of the emergency temporary standard and incorporates the improvements discussed above, so that transit workers can continue to provide their essential services while staying as safe as possible from SARS-CoV-2.

For further information, please contact ATU Associate General Counsel Laura Karr at lkarr@atu.org or (240) 461-7199.