SENT VIA VIRGINIA TOWNHALL (townhall.virginia.gov)

April 27, 2022

Commissioner Gary G. Pan

Department of Labor and Industry

Main Street Center

600 East Main Street, Suite 207

Richmond, Virginia 23219

Re:      Guidance for Employers to Mitigate the Risk of COVID-19 to Workers

Dear Commissioner Pan:

On behalf of the Virginia Hospital & Healthcare Association’s (“VHHA”) 26 member health systems, with more than 104,000 employees, thank you for the opportunity to comment on the Department of Labor and Industry’s (the “Department”) Guidance for Employers to Mitigate the Risk of COVID-19 to Workers (hereafter referred to as the “COVID-19 Guidance”). We strongly support rescission of the COVID-19 Guidance.

As a general matter, we are concerned that the COVID-19 Guidance will create confusing or contradictory recommendations that could lead to implementation of measures that do not consider the latest data or scientific evidence of preventing the contraction or spread of COVID-19. The Centers for Disease Control and Prevention (CDC) has continuously issued guidance throughout the COVID-19 pandemic and is widely relied upon by employers in Virginia and throughout the country as a source of current, evidence-based practices to be implemented as incidence of the disease ebbs and flows over time. By introducing a separate set of recommendations, it is highly likely that the COVID-19 Guidance may be in conflict with more current CDC guidance and will create confusion, without providing additional value for employers or the public.

Any guidance issued by the Department, including the COVID-19 Guidance, should specifically exclude Virginia’s hospitals and health systems in order to prevent such contradictory or confusing guidance from the Department.  As we have commented to the Department previously, hospitals and health systems already possess strong expertise in infection prevention and control and are best situated to design effective measures to protect employees and the public. Infection prevention and control is a daily, ongoing focus within Virginia hospitals and health systems. Operating under the oversight of the CDC, the Centers for Medicare & Medicaid Services (CMS), the Virginia Department of Health (VDH), and various other accreditation and regulatory authorities, hospitals and our ancillary facilities are required to consistently demonstrate that their patients and staff receive and provide care in a safe environment. This includes development and implementation of comprehensive infection control plans, quality improvement programs, managing supply chain, training employees and caregivers, ensuring employees have the resources they need, planning for future health emergencies, and working with congregate care settings to institute strong infection control practices, among other activities.

In addition to these general concerns, the COVID-19 Guidance frames its content as “general COVID-19 recommendations that may be implemented in the workplace” while also noting that “[t]he Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.” Statements such as these introduce additional liability from impermissible employment actions and, from the perspective of health care employers, interfere with the need to implement evidence-based infection and prevention and control practices appropriate to ensure the safety of employees, patients, and the public.

Furthermore, the COVID-19 Guidance includes the following two paragraphs that, when read together, are confusing:

During this transition period of near normalcy, the Commonwealth of Virginia and the Department of Labor and Industry support and respect the rights of individuals to choose whether to wear masks or to not wear masks in non-federally mandated environments, unless required by law or as medically appropriate in cases of acute illness or in certain healthcare environments.

The Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.

It appears these statements would prohibit employers from terminating an employee for not wearing a mask, except in federally mandated environments, where required by law, as medically appropriate in cases of acute illness, or in certain healthcare environments. While we generally agree these exceptions would not create a conflict in application, we are concerned that the full breadth of state and federal laws or regulations or appropriate circumstances that may require mask wearing are not captured in these specified exceptions. It is also unclear from the COVID-19 Guidance what would constitute “illegal discrimination” in the context of mask wearing and it may be helpful to cite to the specific state or federal laws or regulations that do not permit discrimination on this basis.

In closing, while the COVID-19 Guidance is welcome departure from the Department’s previous COVID-19 workplace regulations, the COVID-19 Guidance we maintain that such guidance only serves as a means of further confusing employees and employers or contradicting existing requirements or recommendations from the CDC and other regulatory authorities that are widely adopted. We are also concerned that the COVID-19 Guidance may rise above a mere “recommendation” and instead place additional regulatory requirements on employers and corresponding liability. Over the past two years, employers have been implementing an array of regulations, guidance, and recommendations from federal and state authorities, and we now need to begin to streamline regulation and avoid unnecessary conflict among competing regulation. Accordingly, we respectfully request that the Department not implement the COVID-19 Guidance.

Sincerely,

Sean T. Connaughton

President & CEO