Jay Withrow, Director

Division of Legal Support, ORA, OPPPI, and OWP

Virginia Department of Labor and Industry

600 E. Main Street, Suite 207

Richmond, VA 23219

jay.withrow@doli.virginia.gov

Re: Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220

Dear Members of the Virginia Safety and Health Codes Board:

Thank you for the opportunity to comment on 16 VAC 25-220, the permanent standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19. On behalf of its food retail and wholesale industry members, the Virginia Food Industry Association (VFIA) respectfully requests you oppose the adoption of the Permanent Safety Standard for Infectious Disease Prevention, SARS-CoV-2 / 16VAC25-220.

The VFIA is a nonprofit trade association that serves as an advocate for the retail and wholesale food industries in the Commonwealth of Virginia. Collectively, VFIA’s members employ more than 55,000 people at more than 530 retail locations. VFIA shares the department’s objective to exercise safety and health precautions in our stores. Throughout the pandemic, VFIA members have safely and effectively maintained in-store sanitization and safety standards. Additionally, VFIA members were the very first to implement innovative safety measures that are now seen as staples across all retail industries. 

The current Emergency Temporary Standards, of which is the basis for the proposed permanent safety standard, mandates a one-size-fits-all approach for businesses across Virginia to prevent the spread of SARS-CoV-2. The standard has caused confusion due to conflicting federal and state regulations. VFIA members prioritize keeping customers and employees safe and follow guidelines published by CDC, VDH, and OSHA to help prevent the spread of COVID-19. Conflicting regulations and guidance become more confusing when retail establishments have locations in multiple states. When implementing precautions to keep customers and employees safe, businesses should be allowed to implement current nation-wide guidance. This ensures consistent and clear guidance for all employers to implement throughout their corporate footprint. 

Additionally, converting a temporary standard into a permanent standard for a specific virus such as COVID-19, sets a dangerous precedent. Scientist and world health groups say the probability of this virus soon being manageable and even preventable is high. Mandating a permanent standard implies that safeguards such as face masks, social distancing, protective barriers, and daily pre-shift screenings will still be required after the imminent threat of COVID-19 has subsided.

While we take issue with several of the proposed regulations, the following pose the most significant challenges to the grocery industry from a practical standpoint: 

• §10.F originally stated that this standard shall not conflict with requirements and guidelines applicable to businesses set out in any applicable Virginia executive order or order of public health emergency.  With the removal of this provision in its entirety, there is more opportunity for conflicting standards and confusion.  We recommend stating that to the extent that guidance conflicts, CDC and/or OSHA guidelines govern, or other similar clarification given the ever-evolving regulations and guidelines in other jurisdictions.

• §40.B.8 requires employers to report to the VDH when the worksite has had two or more confirmed cases of COVID-19 and to report all cases until the local health department has closed the outbreak.  This reporting then restarts even after the case has been closed by VDH.  Currently, businesses are already required to notify the Virginia Department of Labor each time there are three or more positive cases.  Requiring employers to make separate and more frequent reports seems duplicative and more burdensome for administrative purposes -- if that is the intent.  We recommend this provision be eliminated or revised to mirror the existing reporting requirements to the Virginia Department of Labor, and no more.  Alternatively, the reporting issue to the VDH could be addressed through a shared agreement between the agencies, rather than placing the burden on businesses.

• §40.C.1 prohibits screened-out employees (whether “known” to be infected or not) from returning to work unless three conditions are met, including that 10-20 days have passed since symptoms first appeared.  This last requirement should be eliminated or revised to allow for employees to return sooner when there is sufficient information showing there is little to no risk in the employee’s return to work. A few examples include a voluntary negative COVID-19 test result from the employee, symptom(s) disappearing within hours, or a doctor’s note clearing the employee for work.  Please remember that 10-20 days is a lengthy time for an hourly employee to be away from work and potentially unpaid, and a lengthy time for the business to deal with the absence -- if it is unnecessary.

• §90.B. prohibits discharge or discrimination against any employee who voluntarily provides and wears their own face covering.  Most retail operations have dress codes which place reasonable and nondiscriminatory restrictions on such garments, including acceptable color/pattern for masks and face coverings.  These dress codes are essential to professionalism in customer service, as well as Company branding.  This discrimination provision should state that if the employee insists on providing his or her own face covering, the employer can still enforce the dress code regarding such mask or face covering without violating this provision.

• §60.B. requires that air-handling systems under employer control be handled in accordance with certain standards.  The section begins with “Employers shall ensure that air-handling systems under their control where installed in accordance with the . . .,” but is incomplete.  This provision should be revised for clarity.

  • § 60.B.1.c requires compliance with USBC and applicable referenced American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards.  It should be clarified that this is in lieu of preceding provisions I-ix, as adherence with both is overly burdensome and confusing. 

• As raised previously, §60.C. is drafted to address administrative offices, not retail workspaces.  The section is prefaced with “To the extent feasible…” -- however, some standards listed are technically “feasible” but not practical or necessary in the grocery store environment.  For example, grocery stores are unable to implement flexible worksites and work hours, such as telework.  We have similar concerns with the broad use of delivery and curbside pickup, which are currently used in our stores, but cannot be a wholesale replacement for customer shopping.  We recommend this provision be revised to either include standards that are practical for retail workplaces such as grocery stores or provide an exception to standards that are not practical or unnecessary in the grocery store environment. 

Thank you again for your time in considering the concerns laid out above. Again, I respectfully ask you oppose the adoption of the Permanent Safety Standard for Infectious Disease Prevention, SARS-CoV-2 / 16VAC25-220.

As always, I am happy to discuss any of these further.

Sincerely,

Parker Slaybaugh

Executive Director

Virginia Food Industry Association

(804) 731-4976

ParkerS@VAFoodIndustry.org