Dear Safety and Health Codes Board Members:
On behalf of the Business Coalition (“Coalition”) which is comprised of 33 leading business associations across the Commonwealth, we thank you for the opportunity to comment on the Virginia Department of Labor and Industry’s announced intent to Adopt a Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220 (collectively, the “Regulations”). The Business Coalition is committed to protecting employees, contractors, suppliers, and communities from COVID-19 infection.
Our members are already heavily regulated under multiple federal and state occupational health and safety programs. Coalition members are interested in a uniform and coordinated approach to Federally delegated health and safety regulations. As such, our members participate in national trade groups, and have worked to develop best management practices and implemented a hierarchy of controls to protect their workforce from COVID-19 infections as proscribed by all Federal regulatory agencies. Accordingly, the Coalition is uniquely positioned to participate in the public process associated with the development of the Regulations.
I. Summation of Business Coalition’s Comments
Virginia businesses need certainty and consistency in any regulatory program. This ensures that the regulated community understands the requirements of the program, and that all parties can work together to satisfy the regulatory requirements.
The Coalition asserts that adopting 16VAC25-220 as permanent regulations is overly burdensome, unnecessary, and violates existing law. The science of COVID-19 is continuously being updated. Therefore, the CDC and OSHA guidelines are frequently updated to reflect this. If the ETS were to become permanent, it would continue to require businesses to comply with outdated regulations.
Now is not the time to impose a permanent standard. Why adopt a permanent standard when we’re beginning to see the rollout of vaccinations?
The proposed permanent standard does not contain a true sunset date. Rather, all it does is reiterate the Board’s authority to come back at a later date to determine the necessity of a continued permanent standard after the Governor’s State of Emergency is lifted. The Board was clear during its July deliberations; the temporary nature of this pandemic requires any regulations put in place related to COVID-19 should be sunset with the Governor’s State of Emergency order. If the Board intends to move forward with a standard after expiration of the current ETS, we expect the Board to stick by its decision to end these regulations at the end of the COVID-19 pandemic.
There is still no economic impact statement to evaluate the cost on small businesses as required with the Small Business Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act. Because this impact statement was not available at the time written comments were due, businesses have had no opportunity to address any findings from that analysis.
Permanent regulations would be overly burdensome, costly and confusing especially in light of overlapping regulations and guidance with the “Safer at Home” guidance, Executive Order 72, and the proposed rule. Businesses are already incurring expensive costs to comply with the ETS from hiring consultants and attorneys, taking workers out of production to do additional training, etc.
It is unreasonable to apply a “one size fits all” approach to COVID-19 regulations to all employers and employees. The Board’s determination of “grave danger” in relation to the COVID-19 ETS has not materialized for ALL workplaces. In fact, we argue that the lack of verifiable data on infections, hospitalizations, and deaths by workplaces (categorized by low to very high risk) is effectively non-existent. In fact, VDH data indicates that COVID-19 confirmed deaths are primarily with citizens over 70 years old and with individuals in long term care facilities. The “grave danger” determination for ALL workplaces must be reconsidered especially when it is still unclear how many infections by type of workplace have been documented and the number of resulting hospitalizations and deaths have been confirmed by type of workplace (low to very high risk).
VDOLI also cannot demonstrate employer compliance with the COVID-19 ETS. We contend that most Virginia employers are not in compliance with the COVID-19 ETS and yet infections have been reduced entirely by employer compliance with CDC guidance, OSHA guidance, and Governor’s Executive Orders – not the COVID-19 ETS.
Therefore, the Board cannot simply assume and apply its prior “grave danger” determination and COVID-19 ETS efficacy as the basis for permanent regulations. Further, since 46 other states have neither a COVID-19 ETS or permanent regulation, the Board has not proven the necessity for such a permanent regulation.
Infectious diseases are not all the same. Therefore, the Board should not expand these regulations to other infectious diseases. We have no idea what protocols will be necessary to mitigate the risks of future diseases, so it doesn’t make sense to create a permanent standard for all infectious diseases.
II. Recommendations
As such, the Coalition respectfully requests that the Virginia Safety and Health Codes Board withdraw its “Intent to Adopt a Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220.”
Instead, if the Board can demonstrate a necessity to pursue regulation, it should do the following:
III. Conclusion
It is unreasonable to apply one-size-fits-all COVID-19 Regulations to all employers and employees. It is also profoundly inappropriate to bypass the formal regulation process altogether by attempting to codify guidance and Executive Orders as a reasonable replacement. Further, it is confusing why the Board would pursue permanent regulations that are in conflict with previously issued Executive Orders.
Therefore, it is the Coalition’s recommendation that the Board reject the Regulations, provides additional public comment related to the newly revised January 4th proposal and anticipated economic analysis, and convene a workgroup of stakeholders to revise and recommend a second COVID-19 ETS that expires within 6 months of adoption or when the State of Emergency expires.
Sincerely,
VIRGINIA BUSINESS COALITION