August 23, 2021

 

 

Dear Safety and Health Codes Board Members:

 

On behalf of the Business Coalition (“Coalition”) which is comprised of 34 leading business associations across the Commonwealth, we thank you for the opportunity to comment on the Virginia Department of Labor and Industry’s proposed amendments to the Final Permanent Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220.  (collectively, the “Regulations”).

 

Since the beginning of the pandemic, Virginia employers diligently kept their businesses and workplaces updated with the most current COVID-19 protocols to ensure they were doing everything possible to protect their employees, customers, and clients.  Despite the stressful time Virginia businesses experienced working through the various layers of government regulations while struggling to keep their doors open for business, they understood how critically important it was to do their part to reduce the risk of exposure and spread of the virus.

 

The Virginia Business Coalition would like to reiterate our position that the Board should repeal the Permanent Standard and remove a static regulatory burden for a pandemic that is temporary.  There is no evidence that these regulations provided any additional protections that current CDC and OSHA guidance already provided. 45 states are proof that the Board is over-regulating.

 

However, if the Board feels a standard should remain in effect as the pandemic winds down, we strongly encourage the Board to address the following five (5) areas of concern:

 

1. Adopt Governor Northam’s recommendation to amend Section 16VAC25-220-10.E to provide employers with safeguards should they comply with the most recent CDC guidance.  We hope the Board will reconsider and approve the following language change. 

 

E. To the extent that an employer actually complies with a recommendation contained in CDC guidelines, whether mandatory or nonmandatory, to mitigate SARS-CoV-2 virus and COVID-19 disease related hazards or job tasks addressed by this standard, the employer's actions shall be considered in compliance with the related provisions of this standard. An employer's actual compliance with a recommendation contained in CDC guidelines, whether mandatory or non-mandatory, to mitigate SARS-CoV-2 and COVID-19 related hazards or job tasks addressed by a provision of this standard shall be considered evidence of good faith in any enforcement proceeding related to this standard. The Commissioner of Labor and Industry shall consult with the State Health Commissioner for advice and technical aid before making a determination related to compliance with CDC guidelines.

 

2. Simplify “respiratory protection” in vehicles with more than 1 person to be a face covering.  The current proposed language is impractical and could put employers in a bind should there be a supply shortage of certain types of face coverings. Employers should be allowed to only require face coverings while in the vehicle provided the occupants follow CDC guidelines.  Also, the amended standard places a difficult burden on employees to know when to comply with the face covering requirement when traveling between areas that are of varying exposure rates. Our recommended amendments are below:

 

 

16VAC25-220-40. F (PAGE 29)

4. When an employee who is not fully vaccinated must share a work vehicles or other transportation with one or more employees or other persons because no other alternatives are available, such employees shall be provided with and wear respiratory protection, such as an N95 filtering face piece respirator, or a face covering at the option of the employee. When an employee who is fully vaccinated must share work vehicles or other transportation with one or more employees or other persons in areas of substantial or high community transmission because no other alternatives are available, such employees when feasible shall be provided with and wear face coverings.

 

16VAC25-220-40. F (PAGE 29)

6. Until adequate supplies of respiratory protection and/or personal protective equipment become readily available for non-medical and non-first responder employers and employees, employers shall provide and employees shall wear face coverings while occupying a work vehicle or other transportation with other employees or persons.

 

16VAC25-220-40. (PAGE 35)

M. Unless otherwise provided in this standard, when engineering, work practice, and

administrative controls are not feasible or do not provide sufficient protection, employers shall provide personal protective equipment to their employees and ensure the equipment's proper use in accordance with VOSH laws, standards, and regulations applicable to personal protective equipment, including respiratory protection equipment.

 

3. Remove requirement for “Low” and “Medium” risk facilities to maintain HVAC systems in accordance with manufacturers’ instructions since it does not address the potential hazard (if any) as it relates to ventilation.  In addition, the language does not account for older facilities, as upgrading the ventilation in those facilities may be infeasible.

 

NOTE: Governor proposed $250 million for HVAC compliance costs for only 197 schools. The VDOLI economic impact assessment of this cost to industry is completely inaccurate and inadequate.

 

Instead, the Coalition recommends that the Board adopt the recommendations put forth by the Virginia Manufacturers Association in their comments related to the CDC guidelines on HVAC systems. 

 

4. Strike “social media” employee complaints from §16VAC25-220-90.   This particular regulation exceeds federal OSHA protections removes any due process for the employer to address the complaints.  Whistleblower protection is intended to protect employee complaints to the responsible government regulatory agency.  If a person is proven to have provided false statements on social media and never raised the concerns with the appropriate government agency or management of the company, they should not be insulated from action. Our recommended amendments are below:

 

16VAC25-220-90 (page 57)

C. No person shall discharge or in any way discriminate against an employee who raises a reasonable concern about infection control related to the SARS-CoV-2 virus and COVID-19 disease to the employer, the employer's agent, other employees, a government agency, or to the public such as through print, online, social, or any other media.

 

5. Remove new language in the “Return to Work” section (16VAC25-220-40 C(3.) which requires an employer to follow any testing or quarantine guidance provided by a VDH public health professional.  This is in direct conflict with the CDC guidance safe harbor language in 16VAC25-220-10 E.  There is a strong possibility VDH could institute procedures that are beyond CDC guidance and place employers in a confusing situation on which guidance to follow.  Our Coalition’s recommendation is below:

 

16VAC25-220-40 C(3)- (PAGE 26-27)

3. The employer must make decisions regarding an employee’s return to work after a COVID-19-related workplace removal in accordance with guidance from a licensed healthcare provider, a VDH public health professional, or CDC’s “Isolation Guidance” (hereby incorporated by reference); and CDC’s “Return to Work Healthcare Guidance” (hereby incorporated by reference). If an employee has a known exposure to someone with COVID-19, the employee must follow any testing or quarantine guidance provided by a VDH public health professional.

 

By approving the Governor’s recommendation to 16VAC25-220-10.E and addressing the other areas of concern the Virginia employers have with the Permanent Standard, you will enable employers to return their focus where it belongs — complying with the best practices as they are recommended in real time by the CDC while rehiring their employees and rebuilding their businesses. 

 

Sincerely,

 

 

VIRGINIA BUSINESS COALITION

 

 

Associated Builders and Contractors -Virginia

Associated General Contractors of Virginia

Delmarva Chicken Association

Hampton Roads Chamber of Commerce

Harrisonburg – Rockingham Chamber of Commerce

Heavy Construction Contractors Association

National Federation of Independent Business

Northern Virginia Chamber of Commerce

Northern Virginia Transportation Alliance

Precast Concrete Association of Virginia

Richmond Area Municipal Contractors Association

Shellfish Growers of Virginia

Thomas Jefferson Institute for Public Policy

Virginia Agribusiness Council

Virginia Assisted Living Association

Virginia Association of Roofing Professionals

Virginia Association of Surveyors

Virginia Association for Home Care & Hospice           

Virginia Automatic Merchandising Association

Virginia Contractor Procurement Alliance

Virginia Food Industry Association

Virginia Forestry Association

Virginia Forest Products Association

Virginia Loggers Association

Virginia Manufactured & Modular Housing Association

Virginia Manufacturers Association

Virginia Peninsula Chamber of Commerce

Virginia Poultry Federation

Virginia Retail Federation

Virginia Seafood Council

Virginia Trucking Association

Virginia Veterinary Medical Association

Virginia Wholesalers & Distributors Association

Virginia Wineries Association

Coalition Contacts:  Nicole Riley, NFIB; Brett Vassey, VMA; and Jodi Roth, VRF.