27 comments
Our governor should look at our specific challenges and make informed decisions based on Virginia data, not general CDC recommendations. Further, the people of Virginia want the ability to make choices about wearing masks and attending events. If you want to take an action, penalize those who choose not to be vaccinated for no valid reason. If everyone was vaccinated, the problem would be minimal.
Regarding the Masks:
Data still does not support mask wearing by vaccinated folks as helpful; DOLI or any agency/authority should not make further decisions or restrictions based on the tide of public opinion and fear without a proven and relevant study referenced.
Regarding the rest:
The DOLI is still operating on January assumptive data, reviewing since June, while the governor continues to act independently of DOLI for executive orders; with at least some differences with the CDC recommendations. There are too many conflicts. DOLI should exit these considerations; discussions, forums, and procedures of DOLI are not going to be able to keep up with the moving targets of other guidance and orders.
Remove yourselves as much as possible from this confusing heap. Specifically for office buildings and other lower-risk businesses. Let the governor provide the guidance and orders alone for lower-risk business activities and general public safety until the state of emergency is removed.
During the 30-day public comment period for the previous proposed amendment, many (including myself) voiced opposition to the amended regulation and indeed any further regulation. Now, in response to the CDC's revised recommendations regarding masking (which has a highly questionable basis itself), a revised version of the proposed amendment has been put forth with only a 7-day comment period. I would refer you to my previous comment and all of the comments submitted during the 30-day period. It is my sincere hope that you review those and take them into honest, good faith consideration now as well, and don't just treat them as "comments to the prior amendment but not to this". To summarize my prior comment, I do not think any regulation at this point makes sense, is over-reaching, and creates additional hurdles that are burdensome for Virginia businesses.
So another couple of weeks goes by and here we are again. More changes have been proposed and more information has come out since those proposals were made. Regulation can't keep up with the constant evolution of the situation. End the standard. Require businesses to follow all current CDC guidelines. Use the general duty clause. Stop the madness.
Most people can see how this has become an extremely political situation. VOSH owes it to all businesses in the Commonwealth to step out of the political game and stick to keeping workers safe.
DOLI has adopted the use of FAQ's as their preferred method of adjusting the FPS to fit current CDC guidance. I understand the need for flexibility in response to an ever changing situation, and although I believe it is of questionable legality, I am willing to accept this method of regulatory updates for lack of a better alternative. What I find completely unacceptable though, is the lack of a mechanism by which the regulated community is informed of such changes. I have become a nearly obsessive in checking the FAQs to look for new additions. I thought I was really on top of the game. And then I discovered that changes are being made by DOLI to the wording within their previous answers to FAQ's!!! How in the world can we find time to figure out how to comply with the rules if we have to spend every waking minute performing comparative analysis of the entire content of the FAQ web page? PLEASE PLEASE PLEASE establish some obvious system of notification when there are changes being made to the standard by way of FAQ. I'd love to be on an e-mail mailing list or get notifications through an app... something other than dumb luck of stumbling into new words.
The proposal, as revised, continues to be deeply flawed. The two most glaring issues:
1) It places an unreasonable burden on businesses both in terms of monitoring, placing demand on employers to create two classes of workers; essentially requiring employers disclose employees medical choices to all employees. Could that then trigger A.D.A. violation claims? Would the potential for employees feeling harassed by the employer and/or other employees as "The problem around here", make them feel vulnerable to harassment, bias? Would it place "undue emotional stress" creating a "perception of the employer creating a hostile, unsafe work environment? Could that be viewed, ironically as a violation of OSHA's General Duty Clause.
2) The standard implies that COVID-19 is a workplace hazard; it is not. It is an airborne virus, It can be contracted anywhere. There is no way to determine an employee caught COVID-19 at the workplace. Period. It is not a workplace hazard that can mitigated like a chemical, or tripping hazard, etc.
As Governor Northam has stated, the focus needs to be on vaccinating the population. It will not be fixed by more legislation that is disconnected from any practical understanding of how businesses actually operate in the real world. Businesses across the Commonwealth, already traumatized by the events of the past year don't need or want this. We want our employees, customers, and the public at large to get vaccinated.
After reviewing these proposed amendments I was alarmed as an employee of the Commonwealth to discover that DOLI will once again blindly follow CDC recommendations that will have employers in the Commonwealth requiring their employees to wear a mask in the workplace. The distinction between the first mask mandate and this time around is that there is now a vaccine that is (and has been for months) widely available to any who choose to take it. Additionally but no less significant, add to that the fact that there are many who have developed natural immunity after contracting the Covid-19 virus. Despite having immunity to the Covid-19 virus, whether it be natural or through a vaccine, those individuals (now the majority of the population) will be forced soon to don a mask in the workplace if the DOLI proposed amendments to this standard are ratified. Further, I have yet to see a legitimate peer-reviewed scientific study that directly correlates a substantial reduction of Covid-19 cases/deaths to populations that incorporate mask mandates as part of their prophylactic efforts. To be sure, a cloth mask such as those that are typically donned to comply with Covid mask mandates would be ineffective in protecting an individual in a basic wood working shop from inhaling wood dust particles that are orders of magnitudes larger in size than the Covid-19 virus.
The foundation for DOLI's proposal to implement mask mandates is based on the latest CDC recommendations. Unfortunately, one can no longer claim that as a result those recommendations are based on actual science. Once it was discovered that the CDC was consulting with the National Education Association (NEA) to determine whether or not teachers should return to the classroom instead of relying on legitimate peer reviewed scientific studies, they lost all credibility as an agency that was supposed to make objective recommendations that are unimpeded by political motivation.
Absent legitimate data that would clearly and objectively demonstrate that cloth masks significantly reduce the transmission of Covid-19, coupled with the clearly evident political motivation of the CDC to recommend mask mandates, it is clear to me that the primary and sole reason at this point in time to reimplement mask mandates in the workplace is for political theater. Masks on faces function to perpetuate the initial fear caused by the Covid pandemic, which in turn causes individuals to offer less resistance when asked to surrender individual freedoms under the guise of combating a public health emergency.
Covid-19 is here to stay now, just like the flu virus and the cold virus before it. It is utter madness to suggest that mask mandates, social distancing, and shutdowns will continue until Covid-19 has been completely eradicated. Sadly that is exactly the path that we as a Commonwealth find ourselves on right now. I would therefore implore DOLI to turn a deaf ear to political pressures and demonstrate the fortitude needed to rely instead on objective science based evidence to draft amendment proposals to this Standard. Enough is enough - end the mask mandate permanently and allow individuals in the workforce to make health related decisions for themselves based on guidance received from their own medical doctor. If that means they choose to wear a mask in the workplace, so be it. If that means they opt to forgo a mask, that should be equally acceptable to the employer and supported by the DOLI standard.
Thank you for considering my comment.
These next round of "revisions" clearly show the same bias & blatant lack of Virginia's commitment to protect simple freedoms. Unfortunately, this state (as well as many others) will have to learn the hard way - at what point do we, the employees, finally say we've had enough of these restrictions? Given that they are only in place to allow our employers to continue making money, these divisive regulations will undoubtedly have a negative impact on workplace morale, staffing, & solidarity.
Can someone explain to the citizens of this state:
With so many changing narratives in the ever-changing, inconsistent narrative that is Covid-19, why do the leaders of Virginia STILL feel like it is their duty & their right to disregard the freedoms granted to their own citizens?
At some point, we all must realize and accept that we cannot "protect" ourselves by attempting to control others. As with anything in life, we make choices that are best for ourselves & those that we care about. If we lose the freedom to make these choices, we are giving up control of the one thing that inherently ours - our lives.
If you fear the Covid-19 virus - by all means, mask up and/or get vaccinated. It is your right to believe in any threat & make appropriate decisions based on what you feel is best for you. However, that should in no way make you feel empowered nor obligated to oppress others with your own feelings & beliefs. Common courtesy & respect for each other as diverse, free-thinking individuals has gone out the window since the onset of Covid. I urge this state to stop creating more division & adversity among its residents. As I stated in my previous post - all of this has gone on for far too long. Virginia must move forward from Covid-19, in a way that is inclusive of ALL of its residents.
Faith over fear. Quit putting faith of “safety” in a cloth or paper. Instead TRUST God!
You are violating the constitution!
I'm sure this is all for fun and you don't consider anyone's opinion but your own. However, on a wing and a prayer, I'll just say this: you are the blind leading the blind. What about people who have recovered from covid and carry antibodies? And for the love of pete, there should be an exception to all vaccinations until it is fully approved by the FDA. As of today, this is still in emergency approval status. Finally, these masks you want to mandate... have you checked the side of a box recently? Unless it's a N95 mask, the manufacturer has a disclaimer that it doesn't protect against covid micron particles. And while I doubt the person sewing cotton masks on Etsy may not have a warning, I'll just assume that 100% breathable cotton mask with your favorite NFL team logo on it doesn't stop a virus that escaped from a level 5 biolab. But hey... what do I know?
CDC discounted the Denmark study siting 3k people were not enough to determine an outcome yet they use anecdotal stories about hairdressers as case for masking.
There is reports from dentist noting mouth disease , called mask mouth now that causes issues and decay happening because of the use of mask for long periods of time. This does show mask are causing harm.The Mayo Clinic lays out proper masking - I expect my school teacher to ensure my child is following these guidelines since the school is mandating my child wear a medical divide.
Children are not at risk and are able to build natural immunity if exposed at this time with minimal risk. It’s time to allow our kids to breath free- build immunity and break the cycle of drug induced antibody that will only prop up big pharmaceuticals and the elite.
sincerely, a mother of an 8 year old
Medical freedom is the right choice not mandate.
Masking up will have/has had some long term physiological effects on the mental health of our children and ourselves. We still don’t know what the long term total affects will be physically on our health especially our children. We’ve been doing this for almost 18 months and it does not look good for our children’s physiological and physical health. Please do your own research.
These mask mandates violate Title 12 around Restraint and Seclusion. Forced masking is a restraint and leads to a feeling of seclusion - you are opening yourself up to many a lawsuit.
I’m not understanding why there is a mask mandate when they do more harm than good and the PCR rapid test was phase 1 recall, the other PCR test has the EUA pulled as of December 2021 due to the lack of differentiation between sars cov2 and influenza and there are no isolates found for Covid that makes Covid a hoax. Do your research and shame on you!!
Most of the comments on this issue are complete nonsense by some very dramatic keyboard warriors. I applaud DOLI's efforts to keep workers safe despite the rising tide of misinformation and absurdly placed outrage over simple mitigation efforts.
As a citizen working in a mental health clinic that has remained open during the entirety of this pandemic, providing needed services for our vulnerable populations, I can say with absolute certainty that these standards are not difficult to implement and have contributed to our ability to remain on the front lines.
Please continue to amend the standard as the science progresses and ignore the tantrums of our Social Media Scientists.
Thank you for the many updates to the proposed regulation. Below are comments on the updated proposed amendments.
· Additional guidance is needed on exactly what area’s metrics are to be used to make the determination on community transmission (county, region, state, etc.).
· The process of finding the metrics required to determine the transmission level should be streamlined on the VDH website to allow for accurate and efficient determination of community transmission.
· There needs to be an implementation timeline for rolling out the additional requirements for vaccinated employees once the data indicates community transmission has become substantial or high. The change in expectations for vaccinated employees when this happens will need to be communicated and understood by hundreds of people throughout the facility. We recommend at least 24 normal business hours to implement.
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.
[1] ETS § 16 VAC 25-220-10(G)(1); Standard § 16 VAC 25-220-10(E)
[2] 16 VAC 25-220-40(F)
[3] Centers for Disease Control and Prevention, COVID-19 Employer Information for Transit Maintenance Workers, June 9, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/transit-maintenance-worker.html; Centers for Disease Control and Prevention, COVID-19 Employer Information for Bus Transit Operators, May 7, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/bus-transit-operator.html
[4] Centers for Disease Control and Prevention, Health and Safety Steps for Specific Occupations, February 8, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/specific-industries.html
[5] Centers for Disease Control and Prevention, Workplaces and Businesses, June 22, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/index.html
[6] Compare Standard § 16 VAC 25-220-60(A)
[7] Standard §§ 16 VAC 25-220-60(B)(1)(b)(4), (8); 16 VAC 25-220-60(B)(2)
[8] Centers for Disease Control and Prevention, Ventilation in Buildings, June 2, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/ventilation.html
[9] Compare Standard §§ 16 VAC 25-220-40(B)(7)(d)(e); 16 VAC 25-220-70; 16 VAC 25-220-80; and 16 VAC 25-220-90
[10] See Centers for Disease Control and Prevention, Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), March 8, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html (directing readers to OSHA guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace).
[11] See Occupational Safety and Health Administration, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, August 13, 2021, available at https://www.osha.gov/coronavirus/safework.
[12] Virginia Occupational Safety and Health Program, Department Standard Responses to Issues Raised by Public Commenters, Aug. 19, 2021, at p. 18.
[13] Id.
[14] Virginia Department of Health, Cases, Aug. 23, 2021, available at https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/covid-19-in-virginia-cases/; Virginia Department of Health, Outbreaks, Aug. 23, 2021, available at https://www.vdh.virginia.gov/coronavirus/covid-19-in-virginia/covid-19-in-virginia-outbreaks/
[15] Centers for Disease Control and Prevention, Interim Public health Recommendations for Fully Vaccinated People, Aug. 19, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
[16] Centers for Disease Control and Prevention, COVID-19 Vaccine Booster Shot, Aug. 20, 2021, available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/booster-shot.html
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.
Dear Safety and Health Codes Board Members:
Thank you for the opportunity to comment on the Recommended Revisions to the Proposed Amendments of the VOSH Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220. These comments are provided on behalf of the Virginia Trucking Association (VTA).
As background, the VTA is the statewide association of trucking companies, private fleet operators, industry suppliers, and other firms that support safe and successful trucking operations. Our membership includes family-owned and corporate trucking businesses engaged in the transport of goods and services throughout the Commonwealth of Virginia and the United States. The VTA membership includes companies that are headquartered in Virginia as well as companies headquartered in other states that have locations in Virginia and/or operate commercial vehicle in and through the Commonwealth.
Throughout the COVID-19 pandemic, the trucking industry has continued to operate as an essential service, providing critical transportation of the essential goods, including vaccines, test kits and medical supplies, to sustain the population and the economy.
The trucking industry has been able to continue operating by making commonsense adjustments to its operations, both on the road and within its shops and offices necessary to continue daily operations. Safety and Human Resources professionals within the trucking industry have spent countless hours poring over guidelines and recommendations from medical and industry experts to draft continuation plans that work best for their operations and provide the highest and most practical level of safeguards for their employees to protect them from COVID-19.
The Permanent Standard
We believe that the current permanent standard does not provide the flexibility needed for a pandemic that is temporary and ever-changing. Therefore we believe that the Board should act to repeal the permanent standard.
However, should the Board determine to continue the permanent standard, we strongly support the recommendation to adopt the Governor’s proposed amendment to 16VAC25-220-10.E. By approving the Governor’s recommended amendment, the Board will enable employers to focus on and follow the best practices and guidance - and subsequent changes thereto - issued by the CDC as it reacts to ever changing science regarding spread of the virus.
For an interstate industry like trucking, it is extremely important to have one set of regulations and guidance to simplify compliance and promote uniform understanding of the requirements as our drivers travel in Virginia and across the country.
Multiple Employees Occupying the Same Work Vehicle (16VAC25-220-40.F)
We appreciate the effort to address our concern about the requirement that employers provide and require employees occupying the same work vehicle with “respiratory protection, such as an N95 filtering face piece respirator,” which we believe would be overly prescriptive and costly.
While the proposed amendment adding face coverings as an option is an improvement, it will have the effect of requiring employers to incur additional costs to purchase and keep in stock both N95 filtering face piece respirators and face coverings in order to provide whichever option an employee may choose on any particular day.
We believe this section should be amended to require employers to provide and require employees to wear face coverings only. To the best of our knowledge neither the federal or any other state government requires non-medical and non-first responder employers to provide N95 filtering face piece respirators and require employees to wear them. To protect persons on public transportation or at transportation hubs throughout the country, the CDC requires face masks, but not N95 masks. We believe the Board should follow CDC guidelines and require face coverings only.
We are concerned that the amended standard places a difficult burden on truck drivers to know when they must comply with the face covering requirement when, on a daily basis, they are traveling between and working in areas with varying transmission rates
We recommend that the wording of this section be clarified by inserting the word “additional” between the words “more” and “employees” in the first sentence of of the first paragraph of 16VAC25-220-40.F and the first and second sentences of 16VAC25-220-40.F.4.
As stated in previous comments, we strongly support adoption of the proposed new 16VAC25-220-40.F.7.
Virginia Business Coalition Comments
We share the concerns and support the recommendations outlined in the comments filed on behalf of the Virginia Business Coalition, especially those regarding the “social media” employee complaints in §16VAC25-220-90 and the proposed new language the “Return to Work” section (16VAC25-220-40 C(3.) that requires an employer to follow any testing or quarantine guidance provided by a VDH public health professional.
Conclusion
Thank you for your consideration of our comments and please contact me if you need any additional information or have any questions regarding these comments or how trucking industry is working to protect the health and safety of its workers during the pandemic.
Sincerely,
P. Dale Bennett
President & CEO