The Virginia AFL-CIO, a state federation of the national AFL-CIO, represents over 300,000 union members and their families. With over 300 affiliated local unions in the Commonwealth, unions represent workers in a broad range of industries including healthcare, first response, food processing, manufacturing, hospitality, construction, transportation, utilities, grocery and retail service, education, and others; in private and public sectors; in stationary and mobile workplaces. Our members work side-by-side millions of non-unionized workers. 

 

In 2020, the Commonwealth of Virginia was the first in the nation to recognize the need for enforceable workplace protections from COVID-19 and implement a strong clear standard to prevent the virus from spreading and save lives. Recognizing that COVID-19 is not a temporary workplace hazard, the Commonwealth issued a permanent standard in January 2021. Workplace outbreaks have been a key indicator of virus spread throughout the pandemic and continue to be a major source of COVID-19 exposure and outbreaks. This makes workplaces the key point of intervention where the strongest mitigation measures are needed. Comprehensive workplace protections are necessary for Virginia workplaces to remain open as we continue to address waves of infections and hospitalizations surging through communities.

 

We strongly urge the Safety and Health Codes Board to maintain strong provisions in the final permanent standard for COVID-19 that reflect the aerosol nature of this virus and ensure all workers are adequately protected from exposure to COVID-19 on the job. In light of the highly contagious Delta variant, rapid increase in cases and CDC’s latest guidance issued on July 27, 2021, which recommends stronger protections for vaccinated individuals, DOLI should present the Board with a new draft of the revised standard as many of the proposed revisions are no longer relevant at this stage in the pandemic.

 

Workplace protections continue to be vital to preventing the spread of COVID-19.

 

Sixteen months into the pandemic, we know much more about the SARS-CoV-2 virus, COVID-19 and the continued need for protections for all workers. During this time, it has been soundly established that the virus is aerosolized and can spread through the air distances beyond six feet through talking, breathing, coughing or sneezing. Indoor, poorly ventilated spaces where individuals share the same air—workplaces—continue to be where the virus easily spreads, one case rapidly turning into an outbreak. Vaccinations are widely available throughout the nation and are a critical long term measure to end the pandemic, but vaccination rates remain low among working age adults in the U.S., breakthrough infections continue to rise where transmission is high, and evidence shows that vaccinated people carry the same viral load as unvaccinated individuals, making vaccinations insufficient to control the virus spread and mitigation measures critical.

 

The United States and Virginia are experiencing few hospitalizations and deaths among the vaccinated; however, the risk for unvaccinated individuals is increasing with the spread of more transmissible variants. The percentage of adults vaccinated in Virginia varies widely by locality. As of mid-July, many Virginian localities still have less than 50% of adults fully vaccinated, largely in south and southwest Virginia. The Delta variant is sweeping through areas with low vaccination rates and the number of cases is rising in all 50 states, compared to the all-time lows in June and early July. Daily COVID-19 cases in Virginia are now six times more than they were in May.[1] The situation is worsening.  

 

On July 27, 2021, the CDC revised their guidance again due to the high rates of transmission of the Delta variant, once again recommending masking in indoor public spaces for all individuals, regardless of vaccination status, in areas of high or substantial transmission.^[2] To date, more than 70 counties in Virginia are areas of high or substantial transmission, a number that is increasing rapidly.^[3] This guidance also was issued as new data from outbreak clusters showed that infected vaccinated individuals carry the same viral load as infected unvaccinated individuals, even though breakthrough infections usually do not result in severe symptoms.^[4] Breakthrough infections are not uncommon and it is unclear the long term effect of breakthrough infections, especially as the Delta variant surges and additional variants of unknown transmissibility and morbidity develop. In places with especially high exposures, breakthrough infections are more common; recent CMS data show that 68% of infections in nursing home residents are among vaccinated individuals.^[5]

 

While the vaccine is extremely effective at reducing severe symptoms, hospitalization and death, vaccines alone are not sufficient to adequately control the spread of COVID-19. A recent study confirms that even with vaccinations, new variants will continue to spread and that even with high levels of vaccination, relaxation of other mitigation measures will enhance transmission.^[6] The authors’ recommended maintaining non-pharmaceutical interventions and transmission-reducing behaviors throughout the entire vaccination period.

 

In the current state of the pandemic, comprehensive protections that include multiple exposure prevention strategies reflective of current transmission science must continue to be implemented in workplaces—vaccines and masks are not enough to protect individuals from the high rates of transmission and airborne nature of this virus. Comprehensive protections include strong ventilation requirements, adequate respiratory protection, adequate distancing, worker training, immediate removal of cases from the workplace, and early identification, reporting and employee notification of cases and outbreaks, regardless of vaccination status.

 

As workers continue to be at increased risk of exposure to COVID-19 and in light of the new CDC guidance, we support the Safety and Health Codes Board (the Board) continuing to ensure that all workers have protections from exposure to COVID-19. The Board should examine the new CDC guidance which accounts for the current emergency situation, the transmissibility of the Delta variant and the viral load that can be carried by vaccinated individuals and ensure that any amendments to the Virginia Final Permanent Standard reflect this guidance.

 

In adopting the federal emergency temporary standard (ETS) for health care and support workers, they should amend the language to reflect the current CDC guidance in addition to the ETS. The guidance now recommends that vaccinated individuals with a known exposure to an infected person with COVID-19 should isolate and be tested. This is a change from the federal ETS and in light of the new data, Virginia should ensure that all vaccinated and unvaccinated workers are removed from work to prevent the spread of the virus. Additionally, we support the Board ensuring that health care worker protections from COVID-19 do not lapse even if something changes in the federal ETS. These workers have been on the frontline of the pandemic from the first days, are currently fighting to save lives against the Delta variant and will continue to be exposed to COVID-19 even when the risks for others outside of health care might be reduced.

 

Any amendments to the standard must ensure workers remain protected in the workplace from COVID-19 exposures, illness and death.

 

We support many of the Board’s proposed amendments to the Virginia Final Permanent Standard for COVID-19 as it ensures all employers must work together with workers and their representatives to conduct a hazard assessment to identify and mitigate the risks of exposure. The Board should work diligently to incorporate principles from the most recent CDC guidance that supports multiple prevention strategies that the standard requires based on the risk level and not solely vaccination status. However, several proposed revisions would significantly weaken worker protections from COVID-19, placing them at grave risk from the Delta variant, and must be addressed before any revised standard is issued.

 

1. The standard must continue to be the minimum level of COVID-19 protection in workplaces and not permit voluntary public-based CDC guidance as a substitute for workplace protections.

 

The proposed revised final permanent standard maintains the final permanent standard language that allows employers to follow CDC guidance instead of the standard, but only when the guidance provides equivalent or greater protection than provided by the standard. This ensures that employers have to follow a similar set of baseline workplace requirements throughout the standard, while having flexibility to adhere to updated protective guidance as necessary.

 

However, a new amendment proposed by the state would eliminate the language that maintains strong baseline protections from an airborne virus, permitting employers to follow CDC guidance even if it is weaker than Virginia’s standard. This not only undermines the intent of the standard to protect all workers with clear enforceable workplace safety measure-s, but allows federal guidance to supersede state OSHA authority, which is wrong.

 

It is vital that employers are not allowed to follow any CDC guidance instead of the standard as the CDC has hundreds of guidelines and many have not been updated to include current science and are weaker than the proposed revisions to the final permanent standard. On May 7, 2021, the CDC issued a scientific brief on airborne transmission, yet many of their COVID-19 workplace guidelines have not been updated to reflect this information. For example, the meatpacking guidance hasn't been updated since it's creation in May 2020, does not recognize airborne exposure and is filled with unenforceable language of "if possible." The final permanent standard recognizes airborne transmission and the significance of ventilation, air filtration and appropriate respiratory protection. If the Board were to vote to accept the new amendment, it would allow employers to follow CDC guidance that does not recognize the significance of airborne transmission or recommend control measures to address this transmission route, leaving workers at significant risk.

 

The current language in the proposed revised standard stating, “provided that the CDC

recommendation provides equivalent or greater protection than provided by a provision of this

standard,” has been supported and voted on by the Board multiple times as the emergency temporary standard and final permanent standard language was promulgated and adopted. VOSH also has stated that this language has been useful to the agency and they have been able to address CDC guidance that offers greater protections through their FAQs. The current language, quoted above, has been in effect since July 2020 and must be maintained and not be weakened by the Board or the Governor’s office.

 

2. The state must remove the arbitrary distinction of vaccination status as a basis of employer size for the written plan requirement.

 

The final permanent standard requires all employers in higher risk, non-healthcare, workplaces with 11 or more employees to have a written plan. However, the revised final permanent standard includes exempting language "[i]n counting the number of employees, the employer may exclude fully vaccinated employees." This exempting clause must be eliminated from the final revised standard.

 

The requirement to have a written plan must be based solely on exposure risk and the business size exclusion should remain based solely on the number of total employees since all employees are still at risk of being infected and spreading the virus to others, whether or not they are vaccinated. The exception clause would allow for large employers in workplaces with high risk factors of COVID-19 exposure to claim that their workforce is fully vaccinated and therefore not required to have a written plan. There is nothing in the standard that requires employers to determine vaccination status, and states that employers can rely on what employees present. If the standard included this exemption clause, and employers did take action to determine if they have fewer than 11 employees unvaccinated, it would create a recordkeeping nightmare for employers to collect and store information covered under HIPAA and be especially difficult for employers in high-turnover industries.

 

The data released with the July 27, 2021 CDC guidance shows that vaccinated people carry the same viral load as unvaccinated individuals, making vaccinations alone insufficient to control the virus spread and additional mitigation measures are critical. Using vaccination status, even if verified by the employer, to exempt employers from having a written plan will allow the virus to continue to spread in workplaces, as it would allow employers not to implement all the additional mitigation measures in the standard.

 

The exception clause leaves workers at significant risk by not requiring a written plan, no matter the size of the employer or significance of the risk of COVID-19 exposure to these workers. A written plan is essential because it is used to identify tasks where there is exposure to COVID-19, identify the specific control measures that will be used and how they will be implemented, and to have procedures in place to assess that controls are being properly utilized and maintained. Without a written plan there is no assurance that there will be a systematic and comprehensive approach to identifying and controlling COVID-19 exposures at the workplace.

 

It has been suggested that this provision will encourage vaccination. However, allowing an employer not to provide protections does not incentivize vaccination of workers—it only leaves them without protections.

 

 

3. The standard must be continuously in effect to avoid breaks in protections for workers, rather than delaying effective dates for the training and written plan provisions.

 

The training and written plan provisions have been in effect for almost a year and employers should already be in compliance with those provisions of the standard. Any delay in enforcement dates is effectively a halting of essential provisions and there is no reason to give employers who have already been subject to compliance with these provisions more time to comply. Starting and stopping the provisions of the standard as the pandemic continues and surges due to the Delta variant will encourage the virus to spread more rapidly.

 

It has been suggested that newly opened businesses need additional time to come into compliance with these provisions. This argument allows employers who haven’t been following the law weeks of a free pass while other employers have ensured that they are following the law and protecting their workers. Additionally, VOSH already has a process in place for helping new businesses come into compliance with current regulations that would be utilized for COVID-19 as in any workplace hazard. Maintaining all the provisions and being clear that employers must have a plan to prevent exposure to COVID-19 on the job and train their workers will keep all workers protected and does not create gaps in protections from employers who are attempting to follow the rules. Viriginia must maintain the standard set of procedures that keep businesses open and safe—the provisions of the Virginia final permanent standard ensures both.

 

4. A “good faith” safe harbor provision would weaken workplace protections from COVID-19 exposures and move dangerously beyond the standard practice of OSHA’s discretion through enforcement.

 

The final permanent standard required clear and basic mitigation measures for workplace exposures to COVID-19. These provisions included significant, standardized measures such as exposure assessment and determination, notification requirements, and employee access to exposure and medical records, return to work criteria, and sanitation and disinfection. These provisions have been in place without an expressed issue by the agency for more than a year and have contributed to the reduction of COVID-19 cases in workplaces.

 

The proposed good faith safe harbor amendment relieves employers of the obligation to comply with these mandatory basic and vital requirements in exchange for an employer policy that includes an anonymous complaint system if all complaints are resolved. Enforcement of the employer's policy that may be weaker than the standard and resolving complaints should not be a substitute for compliance with the standard's provisions. Additionally, there are no recordkeeping requirements for the complaint system and creating those requirements would be complex and burdensome and workers often are incentivized not to issue complaints or report issues. Without requirements of how complaints are being addressed, it is the word of the employer versus the worker.

 

VOSH already has the ability to use enforcement discretion if an employer is acting in good faith to follow the standard and resolve any complaints or concerns their employees have about their safety. The agency should continue to use their enforcement discretion, but a clause that allows employers to not follow the standard for vague and arbitrary reasons must not be included in the revised final permanent standard for all.

 

5. Language addressing PPE shortages is no longer in line with federal authoritative bodies, weakens the protections in the standard, and must be removed.

 

Respirator and other PPE supplies, stockpiles, and production have increased and are now widely available, and future manufacturing capacity of these supplies is on an upward trajectory in July 2021, compared to 2020. The CDC, FDA and federal OSHA have removed all of their PPE crisis guidance and recommend all employers return to conventional PPE practices.^[7]

 

However, Virginia’s proposed revisions to its final permanent standard includes two provisions that allow the use of face masks instead of appropriate respiratory protection due to PPE shortages. All employers should have provided the necessary PPE to workers and continue to do so when the hazard assessment determines respiratory protection is required. This provision must be completely eliminated from consideration.