The Virginia Railroad Association (“VRA”) respectfully submits these comments to the Virginia Department of Labor and Industry’s (the “Department’s”) Revised Proposed Permanent Standard for Infectious Disease Prevention:  SARS CoV-2 Virus That Causes COVID-19, 16VAC25-220, dated January 4, 2021 (the “Revised Proposed Permanent Standard”).  VRA renews the concerns expressed in its comments dated September 25, 2020 (the “Initial Comments”) to the Department’s earlier Proposed Permanent Standard dated July 24, 2020 (the “Original Proposed Permanent Standard”), which have not been addressed in the Revised Proposed Permanent Standard. 

As VRA pointed out in its Initial Comments, the Federal Railroad Administration (the “FRA”) has issued a Safety Advisory encouraging railroads to follow federal recommendations and guidance related to COVID-19, including guidance issued by the Centers for Disease Control and Prevention (the “CDC”).  85 FR 20,335 (April 10, 2020).  The railroad members of VRA are following the CDC’s COVID-19 guidance in Virginia and throughout their systems in other states to keep their workers safe.

VRA further noted that their members who are following CDC guidance will not necessarily be in compliance with the Original Proposed Permanent Standard for those activities covered by Virginia’s health and safety laws.[1]  That is because the Department proposed to deem an employer following CDC guidance to be compliant with the Original Proposed Permanent Standard “provided that the CDC recommendation provides equivalent or greater protection than provided by a provision of this standard.”  16VAC25-220-10(G.1) (Emphasis added).  VRA expressed its concern that its members will not necessarily know whether following a particular CDC recommendation will provide an equivalent or greater level of protection than the Original Proposed Permanent Standard, putting railroads who are trying to figure out whose standard to follow – the CDC’s or the Department’s – in the difficult position of having to guess.  While the Original Proposed Permanent Standard did allow that following CDC guidance is considered to be “evidence of good faith in any enforcement proceeding,” VRA’s members have no assurance that such evidence will be sufficient to avoid an adverse finding, a fine, or a civil judgment.

VRA’s recommendation was to add a sentence to Section G.1 allowing railroads and others engaged in interstate commerce to freely follow CDC’s COVID-19 guidance without fear of being deemed to have violated the Department’s standard.  This would have allowed railroad operators in Virginia to confidently follow a single standard across their entire interstate networks to keep their workforces safe.

In response to VRA’s Original Comments, the Department claims VRA is concerned that “Virginia’s unique COVID-19 standard would present compliance burdens for its members because it differs from federal OSHA requirements that apply in states covered by federal OSHA jurisdiction.”  Department Response to Written and Oral Comments dated November 4, 2020, p. 395.  The Department goes on to dismiss this concern, noting that it already has promulgated nine other occupational health standards unique to Virginia.  Id.  Concluding that one more unique standard would therefore not be overly burdensome, the Department declined to make VRA’s suggested changes to Section G.1.

But the Department missed the point of the Initial Comments.  The concern was not that the Department’s standards might be different from federal OSHA standards, but that they may be different from the CDC guidance the railroads are already following pursuant to a Safety Advisory issued by the industry safety regulator, the FRA.  Where the Department’s standards and the CDC’s are different, the railroads will have to choose which one to follow.  Section G.1 did not give railroads clear direction on how to make that choice.  Not only does this create a compliance burden, it puts railroads at risk for the consequences of making what may turn out to have been the “wrong” decision.

Although in the revised version of former Section G.1 (now Section E), the Department is directed to consult with the State Health Commissioner for “advice and technical aid before making a determination related to compliance with the CDC guidelines,” it is unclear how such consultations will aid VRA or its members in determining whether following CDC’s COVID guidelines falls within the safe harbor provision.  The Department has established no timelines for making such determinations, no clear process for making those determinations known to the regulated community, and no clear guidance on what the precise subject matter of those determinations will be.

By giving Virginia’s railroads a clear path to continue to follow the single set of COVID-19 safety standards issued by CDC and as advised by FRA, the Department can avoid the ambiguities created by establishing a competing set of standards.  Following federal standards is especially appropriate for industries, like railroads, that are engaged in interstate commerce.

For these reasons, VRA renews its request that the Department adopt the revisions to the CDC safe harbor provision set forth in VRA’s Initial Comments.