VIA ELECTRONIC FILING 

July 30, 2021

Department of Labor & Industry (“Department”)

Safety & Health Codes Board (“Board”)

Re:          Comments regarding Amendments to the Final Permanent Standard (“FPS”) for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19

Dear Ladies and Gentlemen:

                The purpose of this letter is to briefly comment in the interests of Virginia’s rural electric utilities, the electric cooperatives, and the communities they serve.  Virginia’s thirteen electric distribution cooperatives have struggled under the FPS, especially as it has conflicted with federal industry safety regulations applicable to the electric industry and COVID-19 guidance from the Centers from Disease Control and Prevention (“CDC”).  Although assurances received from the agency’s staff indicate that enforcement discretion would be exercised in a common-sense way, the regulatory text should reflect the realities of the fast-changing nature of the COVID-19 pandemic.  In particular, please refer to comments submitted June 22, 2020, on the Emergency Temporary Standard, and September 25, 2020, on the FPS.  Basic clarifications along these lines are necessary in order to preserve and protect the lives of employees.  If the Board is to issue broad, sweeping regulations, such as the FPS, the Board should also reexamine its “long-standing policy” of regulating “regardless of industry” due to the special and essential nature of our work.

We have seen—just this week—a change in CDC guidance regarding the Delta variant of the SARS-CoV-2 virus.  With the pace of changes and the variation in community transmission among localities, the amended FPS should be more flexible, nimble, and adaptable to changes as the new Delta variant spreads and other variants, possibly, emerge. 

Further, the recommendation of the Governor which would make compliance with CDC guidance tantamount to compliance with the amended FPS is a commonsense approach and would remove the ambiguity around the FPS’ ostensible requirement of individualized, case-by-case analysis of whether a particular protective measure within the CDC guidance was “equal to or greater than” the protection required by the FPS.  We strongly support the Board’s integration of the Governor’s recommendation into the amended FPS. 

The Board’s proposal of an anonymous complaint procedure and a requirement to “resolve” those anonymous complaints with no other details about how that system would work or be monitored portends to create an environment of division and difficulty between employers and employees; such a complaint system should be voluntary.

Finally, there also appear to be no mechanisms in the amended FPS for it to expire, for the Board to convene again to examine changing conditions, or for the Board in any other way to exercise its continuing oversight responsibility over the amended FPS.  We urge the Board to add provisions to require meetings at intervals, or to add an expiration date. 

We appreciate the opportunity to comment.  Thank you for your kind attention to this matter, and if you have any questions, please do not hesitate to contact me.              

Respectfully submitted,

Samuel R. Brumberg