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:
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.
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.
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.
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.
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.