September 24, 2020
Thank you for the opportunity to provide comments on the Commonwealth’s Proposed Final Standard, Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19. The PRINTING United Alliance (PrUA) represents the interests of facilities engaged in the production of products through screen, digital, flexographic, and lithographic printing processes. This includes facilities engaged in garment decoration, production of membrane switches, decals, all types of signage, as well as paper products, such as books, pamphlets, and other marketing materials. Our industry is comprised primarily of small businesses, with about 80 percent of establishments employing 20 or fewer people.
We understand and share the concern of the Commonwealth regarding the safety of the workforce during this time of pandemic. However, we believe, it must be tempered with common sense and recognition of costs associated with the compliance of a regulation. We believe that current regulations, as adopted and enforced by VOSH, offer sufficient protection for the workforce for infectious diseases, including the current SARS-CoV-2 Virus.
We do not recommend adoption of a permanent standard addressing this one particular issue. PrUA agrees with the position stated by the U.S. Department of Labor’s Occupational Safety and Health Administration that existing statutory and regulatory tools are protecting America’s workers and that neither an emergency temporary standard nor a permanent regulation is necessary at this time.
We believe that VOSH has adopted all the relevant federal standards and already has the authority and regulatory oversight to address safety and health issues associated with this pandemic situation. An additional regulation is unnecessary and would impose significant costs on businesses at a time when many cannot afford it as they are on the verge of bankruptcy or in a situation where their income is significantly lower than the pre-pandemic period. Many of our members are reporting that sales and income are between 40-60% of pre-pandemic levels.
One of our overarching concerns with the adoption of this standard is that there is no end date or a provision addressing its suspension when the pandemic ceases. It appears that the requirements of this standard would become continuously applicable, and this is not an acceptable situation. The lack of clarity raises critical questions such as - would this standard be enforced only during a pandemic that involved this specific virus? Who would declare that this standard applies, and most importantly, who would determine when the provisions no longer apply as a pandemic may be over? For these reasons, PrUA firmly believes that VAOSH’s current regulatory programs adequately address workplace exposures, including exposures to this virus strain.
Another concern is the static nature of the requirements. While the standard does reference the use of guidelines issued by the Center of Disease Control (CDC), and since the temporary rule was adopted, several recommendations by the CDC have changed and conflict with the requirements in the temporary rule. There are no provisions in the regulation that address what a covered entity would be required to do when another recommendation is revised by the CDC that would conflict with the regulation. As the pandemic continues, it is reasonable to expect that the CDC will issue updated guidance as new information regarding this virus, as well as others, is discovered. How will the average small business determine if they are to follow the requirements specified in the regulation versus the most recent and effect guidance issued by the CDC? And most importantly, how will these conflicts be addressed during an inspection and possible enforcement action?
In order to make this standard permanent, VOSH needs to provide justification that the transmission of the virus in the workplace is such that imposing such an onerous regulation as this one is necessary to protect the health and wellbeing of workers. VOSH is compelled to show that in the absence of a regulation of this nature would cause widespread infections as compared to its existing set of regulations.
In examining the latest statistics for COVID-19 infections, the number of new cases, percentage positivity (the number of cases confirmed as a ratio of the amount of testing), and hospitalizations is clearly on a downward trajectory. Based on the actions taken to address the spike in infections that recently occurred, it appears that the increase was due to people congregating in social settings and not due to being exposed by a coworker. Other recent outbreaks occurred in correctional facility, healthcare, and educational settings. The infection data also shows a higher concentration of infections occurring in Northern Virginia. Of course, some of these locations are “workplaces” which points to the fact that workers need to take precautions to prevent becoming infected.
Because these outbreaks occurred since the imposition of the temporary standard, the requirements in it had little outcome on the results. The publicly available data is not detailed enough to discern the number of “workers” infected verse the general public or other populations. VOSH has access to more specific information and must present compelling evidence that a standard of this nature is warranted. VOSH should be able to show infection rates of workers that occurred before the temporary standard was imposed versus infections after the standard went into effect to support making the standard permanent.
Likewise, VOSH also needs to show that the requirements in the temporary standard, as compared to following CDC and federal OSHA’s recommendations, would be more effective at preventing transmission of the virus in the workplace. Until such time that compelling data indicating virus transmission was dramatically reduced as a result of the temporary standard can be produced, a permanent standard is not warranted.
In addition, the proposed regulation contains many provisions that are quite onerous for small businesses. We offer the following comments on the proposal itself.
Section 40 – Mandatory requirements for all employees
PrUA continues to stress that the requirement to ask employers to designate and document employees as either “very high,” “high,” “medium,” or “lower” exposure risk assumes that the small business would have a person on staff capable of making these type of subjective judgement calls. The addition of a staff person, knowledgeable in the area of infectious disease, imposes a significant economic burden. Alternately, hiring a consultant to perform this analysis also requires taking on significant economic burden and is cost prohibitive.
Section 40.B.3-8c should be deleted. The inclusion of these sections in the permanent standard is not appropriate as these requirements are personnel related and do not have a role in a safety regulation. While we agree that VOSH can develop regulations stating when employers need to notify VOSH regarding injuries and illnesses, we believe that the proposed requirements set forth in the proposed rule overstep the boundaries between development of a safety and health regulation and employment law.
Section 40.C, Return to Work, should also be deleted as these requirements also overstep the boundary between safety in the workplace and employment law.
Section 40.K.8 contains a statement “Hand sanitizers required for use to protect against SARS-CoV-2 are flammable and use and storage in hot environments can result in a hazard.” All chemicals entering the workplace must be accompanied by a Safety Data Sheet that clearly outlines storage requirements. Inclusion of this statement is not relevant as employers are required to clearly identify and store flammable materials. Sanitizers, including hand sanitizers, that are being used in the workplace will be classified as “workplace” chemicals and would fall under the provisions of the Hazard Communication Standard.
Section 60 – Requirements for hazards or job tasks classified at “medium” exposure risk
Section 60.A discusses engineering controls that facilities must undertake when employees are classified as “medium” exposure risk. The ventilation requirements listed are identical to those found in Sections 50.A.1 and 50.A.2 for health care facilities where airborne particulates of infectious diseases are expected to be encountered. Many printing operations could have employees in the medium exposure risk category, and it is important to understand that printing facilities have adopted ventilation systems appropriate for their facilities based on chemical use. The upgrading to this type of ventilation system is both unwarranted and expensive
Section 60.D discusses requirements for Personal Protective Equipment. It is unclear from the regulatory text whether Section 60.C.2 applies to employers that have already undertaken hazard assessments for PPE required in the workplace, which is required of general industry. It appears that this section was written for businesses that are not already covered by the mandatory assessment. And, if Section 60.C.2 does apply to general industry and a new hazard assessment is required, why is there an additional requirement that it be certified when that is already required? We recommend that this section be reworded to acknowledge industry sectors that are already required to conduct the written hazard assessment and conform this requirement to current regulation.
Section D.4 should be deleted as it is not a regulatory requirement but a statement of fact that should be included in a guidance document rather than a regulation.
Section 70 - Infectious disease preparedness and response plan
Implementing Section 70 requirements will create a serious economic burden for small businesses to implement. The proposal states that a person “shall be knowledgeable in infection control principles and practices as they apply to the facility, service or operation.” This proposed standard seems to require businesses to train an existing staff person and dedicate their time to this effort or hire an outside consultant to develop a plan. Again, state guidelines have been issued that provide templates that can be adopted by the business sector that does not require the use of an expert in infectious diseases. In addition, the Centers for Disease Control and Prevention have issued numerous guidelines to assist businesses with creating plans so as not to require the need to hire outside consultants. Hiring such consultants places a significant financial burden on businesses that are trying to recover from the current economic crisis.
The requirements in Section 70.C.3 are unreasonable, if not impossible, to perform by a person who is not an epidemiologist, virologist, or other public health expert. The information about transmission of the virus is changing constantly and even the CDC – upon which the entire country relies – is unable to definitely state how the COVID-19 virus is transmitted, as evidenced by posting guidance on September 18 and then removing that guidance three days later. In addition, the incidence of COVID-19 cases changes constantly. Accordingly, it is unreasonable to expect that a designated person to be personally responsible for knowing the transmission, travel, and other exposure risk information required in Section 70.C.3.a.
Further, the requirement of Section 70.C.3.b-c is extremely complicated and filled with potential violations of federal law under the Americans With Disabilities Act, , Age Discrimination and Employment Act, the Genetic Information Nondiscrimination Act , HIPPA laws, and Equal Employment Opportunity Commission regulations. Requiring such information gathering and analysis puts the company and the designated person at very high risk of liability for violating these laws.
The requirements of Section 70.C.4-9 are not necessary to include in a permanent rule. The heightened requirements related to COVID-19 are covered in the temporary rule. Once the pandemic has resolved, workplaces will be organized and structured in a manner that fulfills federal OSHA requirements and will address the general duty to provide a safe workplace. It is unnecessary to promulgate a permanent rule about best practices, which will continue to evolve in response to surrounding conditions and the proposed requirements of the permanent rule will no longer be the most current nor best practice as written.
Section 80 - Training
We believe that training requirements as outlined are already in place for printing establishments as required by the general industry standards. The addition of any new PPE requires training. And this training is already well documented. The requirements placed in this section are duplicative and do not reflect what is required by current regulation. Therefore, for general industry, such as printing, Section 80.B.8 is redundant and unnecessary duplication of regulation. VOSH should provide a cross reference to the general industry standards so that employers understand that this requirement is already in place in the current regulations governing the use, care, and selection of personal protective equipment.
The PRINTING United Alliance remains committed to providing the graphic communications and printing industry with resources to address safety and health issues associated with the COVID-19 pandemic. However, we do not believe that a formal safety and health regulation is either appropriate or warranted as current general industry standards are comprehensive and sufficient. This position has been validated by both OSHA and U.S. Court of Appeals for the District of Columbia Circuit actions.
Thank you for the opportunity to provide our thoughts and comments on this important regulatory initiative.
Marcia Y Kinter
Vice President Government & Regulatory Information