BEFORE THE VIRGINIA SAFETY AND HEALTH CODES BOARD

16 VAC 25-220

Proposed Amendments to VOSH Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19

Comments by the

Amalgamated Transit Union

International President John Costa

            The Amalgamated Transit Union (the “ATU”) submits the following Comments regarding the recommended revisions to the proposed amendments to the VOSH Standard for Infectious Disease Protection of the SARS-CoV-2 Virus that Causes COVID-19 (the “Standard”), which are under consideration by the Virginia Safety and Health Codes Board (the “Board”). As the labor union representing over 2,200 bus, rail, and paratransit workers employed throughout Virginia, the ATU comes before the Board to present these workers’ pressing safety concerns regarding the recommended revisions – just as the ATU did in October 2020, January 2021, and July 2021 concerning the Standard and the proposed amendments thereto.

The ATU strongly opposes the revision to 16 VAC 25-220-10(E), which would allow an employer to disregard the final permanent standard and adhere to CDC guidance, even when doing so puts workers in greater danger.

            Since VOSH implemented its Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the “ETS”) and as that rule evolved to become the Standard, VOSH has allowed an employer to substitute compliance with the agency’s rules with compliance with “CDC guidelines” only when those guidelines “provide[ ] equivalent or greater protection than provided by a provision of” the relevant VOSH rule.[1] Now, however, the state recommends removing this clause, thereby allowing an employer to substitute CDC compliance regardless of the worker protections that the CDC provides relative to those in the Standard. Such a revision is unacceptable to transit workers for both practical and logistical reasons.

            Regarding practicalities, the recommended revision to 16 VAC 25-220-10(E) would allow an employer to void many of the Standard’s most significant protections for transit workers: employer requirements for protecting workers who ride in vehicles with others.[2] These provisions require a transit employer to provide fresh air ventilation to such workers, to separate them from others as much as possible (such as by limiting transit vehicle capacities), and to provide them with respirators. Current CDC guidance regarding workplace protections from SARS-CoV-2 and Covid-19 does not include any provisions accounting for or mitigating the specific exposure threats that are present in shared vehicles. In fact, the CDC has wholly abandoned its insufficient and ineffective prior efforts to provide workplace safety guidance to transit employers. Its “COVID-19 Employer Information for Bus Transit Operators” (last updated May 7, 2021) and “COVID-19 Employer Information for Transit Maintenance Workers” (last updated June 9, 2021) pages are archived.[3] Further, the agency’s guidance for “specific industries and occupations” includes nothing regarding transit.[4]

            Therefore, a transit employer permitted to choose compliance with the Standard or with CDC guidance, regardless of the relative protections offered, would look to the CDC’s general guidance for all workplaces and businesses.[5] This guidance is far from comprehensive, and it omits many of the Standard’s core provisions that are essential to transit workers. First, it neglects to identify transit workers among those who work in high-risk environments and who therefore require high levels of protection.[6] By extension, the CDC – unlike the Standard – does not require transit employers to provide maximum air filtration, including MERV-13 filters where possible, or virus-blocking barriers.[7] Certain of these measures appear in the CDC’s guidance regarding “Tools to Improve Ventilation,” but by its terms, this guidance applies only to buildings, and not to the vehicles in which many transit workers spend their days.[8]

            Likewise, the CDC’s workplace guidance does not require an employer to establish an infectious disease preparedness and response plan; to train workers regarding that plan, and regarding SARS-CoV-2 and Covid-19; to report Covid-19 cases and outbreaks to state public health authorities; or to protect workers from retaliation for reporting concerns related to SARS-CoV-2 and Covid-19.[9] Instead, the CDC refers parties interested in such matters to OSHA, which has produced more wide-ranging – but still far from comprehensive – workplace safety guidance regarding SARS-CoV-2 and Covid-19.[10] OSHA guidance, however, is not CDC guidance – and per the recommended revision to 16 VAC 25-220-10(E), VOSH would permit an employer to abandon the Standard for CDC guidance alone, without reference to OSHA. Importantly, even if VOSH were to deem employer compliance with OSHA guidance to be equivalent to compliance with the Standard, such a provision would not resolve transit workers’ safety concerns. Like the CDC, OSHA also would not require transit employers to provide respirators, nor would the agency require the detailed infectious disease preparedness and response plan and comprehensive worker training that the Standard demands.[11]

            The recommended revision to 16 VAC 25-220-10(E) also poses several logistical problems. First, the terms “CDC recommendation” and “CDC guidelines,” as used in this provision, are nonspecific and do not direct an employer to any CDC document(s) that the employer might follow in lieu of the Standard. This is a challenge for an employer looking to make a good-faith effort to comply with VOSH’s directives. It is an even bigger problem for workers, who have no way to know what rules their employer is supposed to be following, nor where to find them. Under these circumstances, it would be impossible for workers to monitor their employer’s compliance and to know when a VOSH complaint might be justified.

            Second, and relatedly, VOSH has declined to include in the Standard the mechanics of its plan to enforce the proposed option for an employer to follow CDC guidance without regard to the protections that it offers. Instead, the agency has buried this vital information in its “Department Standard Responses to Issues Raised by Public Commenters” regarding the proposed amendments to the Standard. There, VOSH explains:

In order for an employer to take advantage of 10.E, it has to demonstrate that it is complying with language in CDC publications that could be considered both “mandatory” (e.g., “shall”, “will”, etc.) and “non-mandatory” (“it is recommended that”, “should”, “may”, "encouraged", etc.). In other words, an employer would have to comply with a CDC “recommended” practice even if the CDC publication doesn't “require” it.[12]

Neither employers nor workers are likely to know that they need to look to an obscure VOSH document to discover that the agency proposes to require employers to abide by both “mandatory” and “non-mandatory” language in whatever CDC guidance an employer might select as its SARS-CoV-2 safety standard. Once again, workers would be left in the dark regarding the nature of their employer’s responsibilities, and they would be unable to hold employers accountable. Further, as long as VOSH’s enforcement approach remains outside of the Standard, it is vulnerable to changing institutional attitudes and priorities, which – if altered in a way that is unfavorable to workers – would leave workers even more vulnerable to any employer seeking to minimize the effort and expense put toward SARS-CoV-2 safety.

Third, the recommended revision to 16 VAC 25-220-10(E) would put VOSH in the position of interpreting and enforcing CDC recommendations that the agency did not develop and does not control. There is no guarantee that VOSH’s interpretation of CDC documents would be consistent with the CDC’s interpretation. If and when such discrepancies occur, which they almost certainly will, they will pose challenges to enforcement as employers attempt to avoid citations by appealing to CDC pronouncements that they believe to be favorable. CDC guidance documents are also subject to continual revision, and they change frequently and without notice. Were the Board to adopt the recommended revision, VOSH would have to keep abreast continually of these developments and their application to the many industries under the agency’s jurisdiction – while workers struggle to stay up to date on what their employers are required to do. It would be far simpler and more transparent for Virginia to hold employers to a Standard developed by Virginia’s own occupational safety and health experts – not by federal public health authorities with no expertise in or jurisdiction over workplace safety.

Above all, the recommended revision poses an existential threat to the entirety of the Standard. Since VOSH implemented the ETS, employers have been required to abide by the most protective of the safety directives that the agency made available to them. Under the revision, however, employers would be empowered to choose the least protective option. VOSH makes this clear in its “Department Standard Responses to Issues Raised by Public Commenters,” stating, “An employer will not be subject to citation or penalty if they comply with the requirements of the VOSH Standard, even if a CDC publication were to include a more stringent requirement or ‘recommendation’ than is provided for in the VOSH Standard.”[13] With this approach, VOSH is inviting employers to engage in a race to the bottom regarding SARS-CoV-2 safety – and because safety is expensive and time-consuming, many employers are sure to accept the agency’s invitation. Therefore, the recommended revision would constitute not only a rollback of 16 VAC 25-220-10(E) but of the entire Standard. As Covid-19 case counts rise and workplace outbreaks increase in Virginia, this is not the time to diminish workplace protections. For these reasons, the ATU calls on the Board to reject the recommended revision and to preserve the Standard that workers and their allies have fought to achieve.[14]

The ATU strongly opposes the recommended revision to 16 VAC 25-220-40(F)(4), which would reduce an employer’s responsibility for providing respirators to transit workers.

            If the Board accepts the initially proposed amendment to 16 VAC 25-220-40(F)(4), VOSH would require transit employers (and the employers of other workers who ride in vehicles with others) to provide respirators to those workers. Now, the state recommends revising the amendment to limit this protection only to workers who are not fully vaccinated. For vaccinated workers, an employer would have to provide only a face covering, regardless of the level of SARS-CoV-2 transmission in the community.

            Transit vehicle operators face the same SARS-CoV-2 exposure risks, regardless of their vaccination status. Meanwhile, the CDC has determined that fully vaccinated people can contract and spread the Delta variant of SARS-CoV-2.[15] In light of the agency’s findings regarding fully vaccinated people’s declining immunity to SARS-CoV-2, the CDC is also making plans to begin offering booster shots in a matter of weeks.[16] Under these circumstances, it is unreasonable to reduce transit workers’ access to respirators, when they continue to be in close contact with the unvaccinated public in small, often poorly ventilated spaces. These workers continue to need respiratory protection for themselves and to prevent SARS-CoV-2 from spreading in their workplaces. The ATU, therefore, urges the Board to reject the revision to 16 VAC 25-220-40(F)(4) and to preserve maximum protections for a vulnerable workforce.

            The ATU appreciates the opportunity to comment on the recommended revisions to the proposed amendments to the Standard, and we thank the Board for its consideration. For further information regarding the matters discussed herein, please contact ATU Associate General Counsel Laura Karr at lkarr@atu.org or (240) 461-7199.