Dear Chairwoman Rodriguez:

I am writing as Assistant Vice President of Government Affairs and Public Policy for the

Medical Society of Virginia (MSV) to respectfully comment on the Final Permanent

Standard (FPS) and to request a repeal of the standard.  If the Board is unable to support a full repeal of the FPS, the Board should, at a minimum, adopt Governor Northam’s substitute language for 16VAC25-220-10(E) to allow more flexibility for compliance with the FPS.

MSV is grateful for the many hours of work the Safety and Health Codes Board has

devoted to this issue over last year.  This is a complicated virus, and the Board’s work has been admirable.

Since the beginning of the outbreak, physicians have served on the front lines of the

pandemic. MSV members and their staffs have answered the call to provide for testing,

diagnosis, and treatment of COVID-19.  We have also led the charge on vaccinations, leading to a significant curb in the infection rate.

Even though cases and community spread are down significantly right now, the health

care community remains vigilant as new variants enter the community. As such, CDC guidelines and the OSHA ETS mandate continued distancing, capacity, and PPE guidelines for health care settings.

Unfortunately, the FPS is unable to account for the changing dynamic of the virus and the changing recommendations from the CDC.  For example, language in the FPS that deems compliance with the FPS if the employer complies with CDC guidelines is qualified with the requirement that CDC guidance provide equivalent or greater protection than the FPS.  This qualification essentially eliminates any flexibility this provision was designed to provide.  It also raises the question of who determines the level of protection in CDC guidance versus the level of protection provided by the FPS.

Recognizing this, DOLI continues to update its Frequently Asked Questions in accordance with CDC guidelines.  While the clarification in the FAQs is appreciated, our concern is that a court would still lean on the strict qualifying language in the FPS itself rather than the information in the FAQs.

Accordingly, the MSV respectfully requests that the Board repeal the FPS.  In the alternative, the Board should adopt Governor Northam’s substitute language that an employer’s actual compliance with CDC guidance shall be considered compliance with the FPS.

Thank you for your consideration, and should you have any questions or if the MSV may be of further assistance, please do not hesitate to contact me.