Permanent COVID Reg Called “The Fifth Dragon”

By Steve Haner

Most Virginia employers probably have not read, let alone fully complied with, the emergency temporary standard on protecting their employees from COVID-19 adopted back in July. Yet the public comment period on the permanent version of the rules, which can carry major sanctions, closes this Friday.

Only twenty comments had been filed as of Monday morning, half of them anonymous. So far, the proposed permanent version is not generating the level of activity that surrounded the proposed temporary rule. The Department of Labor and Industry’s Safety and Health Code Board allowed no public hearing before adoption, only written comments.

File a comment on the proposed permanent standard here. You can read the comments to date here. The proposed permanent standard can be read here.

The best so far is one of the anonymous comments:

“We already have four dragons breathing down our necks telling us what to do and what not to do (Loudoun County Health Dept., VDH, CDC, the Governor’s Executive Orders). My god, we can’t even run our business for all the none-stop minutia raining down on us. The last thing we need is yet another (5th) dragon breathing down our necks …. telling us what to do. WE ALREADY KNOW WHAT TO DO!!!  Stop this insanity now!!!

The temporary standards were pushed hard by Governor Ralph Northam, but the state did not make a major effort to publicize them to the thousands of affected employers. How many have actually performed the prescribed training or drafted the required paperwork is not known. A question about that and pending complaints at Governor Northam’s news conference last week was brushed off as premature.

It is a good bet that some employers only learn about this as complaints are filed against them.

But some of the comments that have been filed reflect a deeper read on what the state did initially and intends to now make permanent. Some specific complaints or suggestions have been put forward, pointing to conflict with federal actions or mandates that simply do not make sense or cannot be complied with.

More time with the temporary standards would reveal more such problems, but getting it right seems to be less important than getting it done as quickly as possible.

One major problem mentioned more than once: The “return to work” procedure in the state standard does not jive with the Center for Disease Control’s recommendation, or even that put out by the Virginia Department of Health. It requires a longer waiting period and looks at different signs of health.

“Physicians have been following CDC guidance and providing return to work notes to their patients based on CDC/VDH guidance. Employers should not be placed in a position of second guessing and over-riding a physician’s note. What is the liability to the employer if they do not allow an employee to return to work who has been released by their physician to do so?” That is from one anonymous comment.

Olin Kenney of the Metropolitan Washington Airport Authority zeros in on the very detailed high volume air-condition standards imposed, using a 2019 industry benchmark. Besides the obvious expense issues, forcing every existing building to retrofit to those newest standards makes no sense because it is still unclear what best prevents spread, and this ignores the existing process for setting and revising building codes. Read his comment here.

A corporate vice president for safety points to a long list of issues he’s seen in trying to comply (read it here.) He identifies some requirements, such as training, which would make more sense if the state actually spelled out what it wanted to see. He asked that the state put more emphasis on consultation and assistance, and less on citations for enforcement.

“…what does VOSH deem an acceptable face covering and why?” he asks. “The wide range of what is considered an effective and acceptable face covering needs to be defined in the standard and not left to interpretation of a compliance officer. …T he wearing of a face covering is not defined. How to wear a face covering needs to be defined, as many wear it over their chin, mouth but not over their nose, etc.”

Agree or disagree, love it or hate it, the window to comment is closing fast.