Thank you for the opportunity to comment on the proposed rule.  I have separately provided a detailed set of written comments under the name Leading Edge Policy and Strategy, which I assume will be posted on the Department of Labor and Industry (DOLI) website along with other longer written comments.

Government has fundamentally different obligations when it creates law than when that government is just providing information and best practices guidelines.  In this case the proposal purports to create law that subjects hundreds of thousands of Virginia businesses to substantial burdens and potential sanctions.  Both should be based on evidence and logic.  However, enforceable standards must also provide for proportion and flexibility in written language that guidance need not state expressly.  Businesses have tailored circumstances and inflexible rules in complex situations do not work. Rules must be proportional with respect to the burdens they impose and the resulting benefits must be clear.  This means assessing alternatives and impacts.  Standards must be clear.  Regulated parties must know what is required of them, so they may act accordingly.  Precision in drafting is necessary in the rules so that those enforcing the laws do not act in an arbitrary and discriminatory way.   These are fundamental Constitutional standards and DOLI staff proposed rule fails in multiple ways.

First, the proposed rule violates the commitment of the Safety and Health Codes Board (Board) to provide public participation under the Virginia Administrative Process Act (VAPA).  VAPA requires that there is an opportunity to comment on a regulatory impact analysis.  There has been no such impact assessment provided to comment on.  Even were it not for the Board's commitment, it is inadequate not to provide and impact assessment for public comment.  Most modelling, particular when there are different and confusing interpretation benefit from public comment.

The proposal itself is uninformed and not based on a regulatory impact assessment.  DOLI staff is likely to ignore any assessment and not actually evaluate the proposal based on impacts.  The analysis must include a real and complete regulatory flexibility analysis concerning impacts and options for small businesses.  It is not reasonable for small businesses to follow all of the provisions of the rules as written.

Second, the Board, DOLI staff, the Health Commissioner, and the Governor have published overlapping, confusing, and conflicting requirements in a series that include Executive Orders, Orders of Public Health Emergency, an associated document styled "Safer at Home" document, the Emergency Temporary Standard (ETS), and now a proposed permanent rule. These provisions overlay existing Virginia rules, rules under the Occupational Safety and Health Act, the Americans with Disabilities Act, and privacy laws.  So far, no government official nor commenter from labor unions, to my knowledge, has discussed these overlaps, impacts and resulting confusion.  This is the typical government approach of not taking full responsibility and being blind to overlapping actions.  All that seems to be in play is that there is a lot of words and whether they clash and how they work seems to have no discussion.  This is a failure of the first order and this cannot continue.  Clearly, these government officials are responsible for the matrix of rules they are enforcing on Virginia businesses which also adversely impact employees.  These officials must lay the provisions down side-by-side to ask why there are differences and how they work together in explicit terms and with full public comment.  This is good government 101.

Indeed, there are numerous conflicts, unworkable constructs, and unclear language in this regulatory matrix of cross-references.  Consider the proposed rule draft itself appears to have 20 footnotes that cross-reference websites.  The Safer at Home document refers to multiple guidance documents.  None of these documents were written in a manner to work as enforceable rules and the result cacophany is worse.

Third, after numerous attempts, the Board should understand that certain areas do not lend themselves to enforceable rule language as opposed to guidance.  My longer written comments contain more examples.  Here I mention the "suspected" COVID provisions which involve excluding people from a work site if they have any symptom or sign consistent with COVID.  Such employees may not return to work potentially for 10 days or longer.  The problem is that symptoms of COVID involve a list that includes a cough, a sneeze, runny nose, headache, vomiting or fatigue. Each is independently a symptom.  The proposed rule only allows ignoring the symptom if there is an "alternative diagnosis".  It is unclear who makes such alternative diagnosis and whether that diagnosis has to provide that something is not COVID or just that there is a good possibility the symptom is consistent with something else.  On some things, the Safer at Home documents are better with respect to these concerns.  For example, the Safer at Home document requires employers to instruct employees to stay home who are "sick" as opposed to "suspected".  It may be wise for people to stay who home who have symptoms but a hard rule would have dramatic consequences and would not work.  The COVID-19 screening protocols referred to in the Safer  at Home documents for employee self-checks suggest a structure with a check if the symptom "cannot be attributed to another health condition".  That is very different language than the "alternative diagnosis construct."  Regardless, at this point there is substantial overlap and confusion. 

If people may not return to a work site for 10 days after such symptoms are no longer there or until there is a professional diagnosis that rules out COVID, the damage to businesses and employees will be substantial.  The scheme means employees lose work and employers lose an employee for a length of time when the issue is not COVID. That time loss can be repeated each time there is a symptom.  Such caution may or may not be relevant to certain high-risk settings.  However, this approach is not feasible for all employment settings, including in settings that are outside or where distancing is available in the employment setting.  Employees may use up their sick leave, they miss important training, projects or job opportunities.  Many temporary or contract employees may have no sick leave and no alternative funds--all because an employee has a cold or cough or a headache.  The system means that employees will want to be honest about their symptoms with their employees for fear of the losses they may entail.

The Board's prior support for incorporation of the Orders in the ETS was also a problem.  Changing that incorporation is good, but unfortunately, both the impermissible infringement on freedoms continue and the arguable threat of DOLI enforcement is in play for the overlapping areas of assembly and association and the distancing rules.

A statewide limitation of the size of assembly is unprecedented. This limitation has uneven application under the Orders. These same restrictions do not now apply to a large meeting of lawyers at a law firm. Crowds are allowed at a Walmart, Lowes, or other large
"essential" store without those restrictions.  The numerical limits of 10 persons currently under EO72 and the Safer at Home document apply to businesses in certain circumstances but not in others.  Similarly the distancing requirement and the related definitions of who may or may not stand together are set out inconsistently.  A government scheme that prohibits every instance of physical proximity among individuals withing six feet of one another, based on nothing more than the government's arbitrary and unilateral classification of their relationship status is an infringement of fundamental rights under the Virginia and U.S. Constitutions. The right of association is both an integral part of the right of assembly and a separate fundamental right.  At issue is nothing less than the right of a free people to determine, apart from government rules or coercion, with whom they can sit or stand next to or perhaps a private conversation without distancing.

By penalizing employers for not following the impermissible infringements on Constitutional rights by the Governor, the Health Commissioner, and the Board itself in the ETS, forces employers to participate in an illegal scheme.  There should be no government definition of who must distance versus not distance based on relationships which neither the government nor businesses can reasonably assess.  In various settings, the ETS would have employers ask customers about their family or household relationships to enforce the distancing requirements.  This is not a workable scheme.  There is no evidence after many months that this scheme has yielded any benefit other than to threaten all with criminal sanctions.  The Board would penalize a wedding venue because a boyfriend and a girlfriend not residing in the same house sat together at a religious service or walked together at a farmer's market.  This is obviously absurd, yet the construct that the government can decide who can voluntarily stand together remains in the Orders.  The proposed rule does nothing to remove this problem and may or may not simply repeat it.

For the reasons discussed above and in my longer written comments, the Board should not promulgate a permanent standard and not promulgate the current proposal from DOLI staff.  The Board should provide or obtain a regulatory impact statement and regulatory impact analysis and provide a 60-day opportunity for public comment.  The Board should obtain an evaluation of the implementation of the ETS.