BEFORE THE VIRGINIA SAFETY AND HEALTH CODES BOARD

16 VAC 25-220

Proposed Amendments to Final Permanent 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 amendments proposed to the final permanent standard regarding infectious disease protection, SARS-CoV-2, and Covid-19 that 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 proposed amendments – just as the ATU did in October 2020 and January 2021 concerning the final permanent standard.

            Further, the ATU stands with its labor movement allies – represented by the AFL-CIO – in supporting certain proposed amendments while urging the Board to strike others, as enumerated in the comments filed by the AFL-CIO. The Board should not construe the decision by the ATU not to expand here upon certain AFL-CIO requests as indicating a lack of support for those points. Instead, the ATU will use its limited comment space to highlight only the following concerns that are most pressing to our Virginia members.

The ATU strongly supports the following amendments that enhance protections for transit workers:

            16 VAC 25-220-40(F)-(G): The ATU commends the Board for proposing to expand the scope of protections for workers who must travel with others in vehicles so that those protections encompass not only coworkers who travel together but also workers who travel with any “other persons.” Importantly, this category of “other persons” reasonably would include members of the transit-riding public. The proposed amendment is a common-sense improvement to the final permanent standard because it recognizes that it is the presence of potentially infected people, not those people’s status as coworkers or members of the public, that determines a worker’s infection risk. Because all people are potentially infected, regardless of their vaccination status – due to the rise of the Delta variant of SARS-CoV-2, the accompanying increase in breakthrough infections, and the expected future emergence of more virulent variants – the only way to promote worker safety in vehicles is to require effective and targeted protections for all workers who must ride with others.

            If amended, the final permanent standard would do this by requiring transit employers to provide fresh air ventilation; eliminate air recirculation; separate transit vehicle operators from passengers, including by limiting vehicle occupancy; and provide respiratory protection to vehicle operators. These measures are consistent with the ATU’s own conclusions regarding vehicle operator safety during the SARS-CoV-2 pandemic, based on over a century of transit safety expertise and on research specific to SARS-CoV-2.[1] Equally important is the fact that the protections that the Board proposes to extend to transit workers are readily feasible for transit employers, with the necessary vehicle components available on the market today.[2] In fact, employers of ATU members in Virginia and across the United States have implemented many of these protections successfully at various times during the pandemic. Although transit employers incur costs in doing so, they have received generous pandemic-related support from the federal government. Those funds should mitigate the impact of any additional expenditures that would result from compliance with these proposed amendments, which the ATU urges the Board to adopt without delay.

            16 VAC 25-220-60(A): The ATU also commends the Board for proposing to list transit among the “higher-risk workplaces” that are subject to the enhanced protections contained in this section. Importantly, transit workers’ coverage under 16 VAC 25-220-60 also ensures that their employers are required to train them in SARS-CoV-2 safety pursuant to 16 VAC 25-220-80. The experience of the ATU throughout the pandemic has confirmed that transit workers face substantial risks on the job; to date, tragically, we have lost over 150 members to Covid-19, and many more have suffered through the illness.

Likewise, a New York University study found that as of August 2020, nearly a quarter of New York City transit workers reported having been infected with Covid-19.[3] While most Virginia transit workers serve areas that are less densely populated than New York, their cumulative risk now likely exceeds that of New York transit workers in August 2020, since the pandemic has persisted for an additional year. Meanwhile, researchers have found that in the United Kingdom, transit workers have died from Covid-19 at rates more than double those of the general working population;[4] in Norway, they are among those with the highest risk of contracting Covid-19;[5] and across six Asian countries, they had the second highest number of occupational SARS-CoV-2 exposures of all groups of workers studied.[6] There is nothing unique to these countries that puts transit workers there at greater risk from SARS-CoV-2 than they are in Virginia. Instead, the threat arises – universally – from transit workers’ frequent and prolonged contact with the public in confined, often poorly-ventilated spaces. The ATU, therefore, urges the Board to adopt the amendment clarifying that transit workers face enhanced risks and are entitled to correspondingly enhanced protections.

The ATU urges the Board to reject the following amendments that would reduce worker protections:

             The ATU is alarmed to find that the Board has proposed several amendments that would reduce protections substantially for workers who are fully vaccinated against SARS-CoV-2. If adopted, these amendments would eliminate an employer’s obligation to provide physical barriers, administrative and work practice controls, personal protective equipment, and SARS-CoV-2 training to protect vaccinated workers. (See 16 VAC 25-220-60(B)(2), (C)-(D) and 16-VAC-25-220-80(A)(2).) Likewise, an employer would be free to disregard vaccinated workers when determining whether its workforce is large enough to require a written infectious disease preparedness and response plan. (See 16 VAC 25-220-70(A)(2).) To the extent that the standard still would require the employer to develop such a plan, neither the plan itself nor its training requirements would apply to vaccinated workers. (See 16 VAC 25-220-70(B)(2).)

            The present state of scientific knowledge regarding SARS-CoV-2 does not support these amendments. Since December 1, 2020, testing labs have detected 644 cases of the Delta variant in Virginia.[7] This number represents over seventeen percent of the total cases in the state during the week ending July 30, 2021, and due to limitations on labs’ virus sequencing abilities, the actual number of Virginia Delta cases is likely much higher.[8] Further, Delta cases are increasing in Virginia, having doubled in the two weeks prior to July 9, 2021. By the end of June 2021, Delta cases represented eighty percent of all SARS-CoV-2 specimens sequenced in Virginia. Researchers predict that Delta will become the dominant viral strain in the state. [9]

            Delta’s increasing prevalence is important because, as the U.S. Centers for Disease Control and Prevention announced on July 29, 2021, it appears that vaccinated people who become infected with Delta can transmit the infection to others.[10] This was not thought to be the case with other SARS-CoV-2 variants. The difference might be due to the fact that people infected with Delta tend to have high viral loads, regardless of whether they have been vaccinated.[11] Therefore, while breakthrough infections remain rare in Virginia, with 1,566 detected since January 1, 2021 (although due to the widespread practice of not reporting breakthrough cases that do not result in hospitalization, the true number is likely much higher), those that do occur are now more dangerous because they can feed outbreaks among unvaccinated people.[12] With thirty-five percent of Virginia’s adult population still unvaccinated, the danger of Delta-driven viral spread is real, as is the potential for vaccinated people to help drive that spread.[13]

            Under these circumstances, it is essential that the Board continues to require employers to protect both vaccinated and unvaccinated (and otherwise at risk) workers alike. It is well understood that SARS-CoV-2 spreads in workplaces. Vaccinated workers are not necessarily immune, and they can infect their unvaccinated colleagues. Therefore, the only way to stop the occupational spread of the virus is to protect all workers. Doing so will have the added benefit of sparing employers the administrative burden of keeping constant track of who is vaccinated and who is not, along with which protections apply to whom. For these reasons, the ATU urges the Board to reject the aforementioned amendments and preserve the full protections of the final permanent standard for all workers.

            16 VAC 25-220-60(C)(10)-(11): The ATU is likewise dismayed that the Board is considering amending these sections to eliminate an employer’s obligation to provide masks to workers (and require those workers to wear them) when the workers’ jobs make physical distancing impossible or when the workers hold customer-facing positions. Most transit workers fit into these categories. An executive order and accompanying U.S. Transportation Security Administration directive currently protect transit workers by requiring universal masking in indoor areas of transit systems.[14] However, these rules expire on September 13, 2021, and the federal government might not renew them.[15] Virginia transit workers would then have no assurance that their employer would provide masks – the absolute minimum level of viral protection that workers need in confined spaces with members of the public, any one of whom could be infected. Therefore, the ATU calls on the Board to preserve mask protections for these vulnerable workers.

            The ATU appreciates the opportunity to comment on the proposed amendments, 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.