July 27, 2021

The National Employment Law Project (NELP) submits the following comments in support of the final adoption of the proposed Final Permanent Standard for COVID-19 adopted by the Virginia Safety and Health Codes Board on June 29, 2021, with certain recommended changes proposed below.  

NELP is a non-profit law and policy organization with 50 years of experience providing research, advocacy, and public education to advance the employment and labor rights of the nation’s workers. NELP seeks to ensure that all employees, and especially the most vulnerable ones, receive the full protection of employment laws, including health and safety protections. NELP’s Worker Health & Safety Program Director, Deborah Berkowitz, is a former OSHA official and an expert in OSHA enforcement and health and safety standards. NELP works with unions in Virginia, as well as community and worker rights organizations such as the Virginia Legal Aid Justice Center, to improve worker safety.

NELP supports the adoption by the Board of the recently promulgated Federal OSHA ETS for the health care industry. We also strongly support the Board’s recommendation that if this Federal ETS is stayed, or otherwise revoked or repealed or declared unenforceable, then the Virginia Final permanent standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 shall immediately apply to all such health care employers. There should be no debate about this at all. The workers in health care industry covered by the ETS face among the highest risk of exposure to COVID and must be protected.

NELP urges the board to adopt the Final Permanent Standard for COVID-19 with the following proposed changes:

1. Section 10: We support the proposed amendments adopted by the board in section 16VAC25-220-10.E (which maintains the current language) and oppose the substitute language proposed in the July 1, 2021 Notice. First, a great deal of the CDC language is weaker than what is contained in the Virginia standard. Further, the substitute language would allow employers to avoid compliance with the standard, and to meet their obligations by simply considering protecting workers. That is because CDC guidance is written as suggestions. The CDC guidance actually states that employers only have to consider their recommendations—the employer does not actually have to implement the recommendations. For example, the CDC recommendations to the meat and poultry industry say they should consider implementing their recommendations“ if possible.” Thus an employer is in compliance—in actual compliance—if they only consider providing protections. They don’t actually have to do anything. We support the current language that states that to the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigateSARS-CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, and provided that the CDC recommendations provides equivalent or greater protection than provisions of this standard, the employer's actions shall be considered in compliance with the related provisions of this standard.

2. Section 40: We urge the board to reject the language in Section 16VAC25-220-40.A. We oppose this amendment to Section 40 because it allows employers to avoid compliance with the standards requirements if they self-declare that they have a policy in place to receive and address complaints by employees of violations. Employers should not be relieved of their legal obligation to comply with the mandatory requirements of the standard simply because they have a policy that resolves complaints. We strongly urge the board to restore the original language such that it reads: Employers shall ensure compliance with the requirements in this section to protect employees in all exposure risk levels from workplace exposure to the SARS-CoV-2 virus that causes the COVID-19 disease.
3. Section 60: B: Engineering Controls 3: We recommend a small amendment to this section, 16VAC25-220-60.B, that adds language to define the “appropriate use of barriers” in food processing plants.

This section addresses risks to workers in food processing plants and ends with this line: “Employers shall ensure proper spacing of employee who are not fully vaccinated or otherwise at-risk employees (or if not possible, appropriate use of barriers).”  This language was taken from Federal OSHA’s new updated COVID 19 guidance, but the board omitted the definition of ‘appropriate use of barriers.’ We urge the board to add the following language to this section from the same updated guidance issued by Federal OSHA-that states: “Barriers should block face-to-face pathways between individuals in order to prevent direct transmission of respiratory droplets, and any openings should be placed at the bottom and made as small as possible. The posture (sitting or standing) of users and the safety of the work environment should be considered when designing and installing barriers, as should the need for enhanced ventilation.”

Sincerely,

Debbie Berkowitz, Safety and Health Program Director

National Employment Law Project

dberkowitz@nelp.org

www.nelp.org