There are several inconsistencies in the Guidance Document that need to be clarified:

1. While the document is labeled as "guidance," there are elements that read as mandates - such as those that appear to prohibit employers from enforcing their own mask mandates.
2. The issue of prohibiting enforcement seems to nullify statements giving employers the right to have their own policies OR to follow other governmental requirements (local, state, or federal).
3. This standard treats all employers with a broad brush, when there are multiple nuances to various industries.  Healthcare providers are dealing with strong CDC guidance that clearly advises broad use of PPE (not just masks) in all healthcare settings.  
   1. CDC guidance/recommendations may not qualify as mandates, but they DO mandate prudence and self-protection against liability in an environment fraught with risk to workers, patients and visitors. 
   2. The proposed Guidance Document appears to carry the potential interpretation that healthcare providers could be caught in a "Catch-22" situation.
4. In summary, the Guidance Document appears to make broad political statements to a collection of employers that are complex and nuanced.  The document needs to be clarified to help all of us know how to protect our employees, our customers, and our businesses.  It is more complex than the draft document presumes.

The proposed guidelines are clear and provide employers with flexibility to create their own policies, as they should be able to do.  However, there is no need for these guidelines. The USA is no longer in a pandemic and COVID is basically the flu. Employers do not need to be regulated for COVID protocols anymore; there are numerous illnesses much more deadly than COVID  people can contract that are not regulated in the workplace. Employers are required to provide a safe workplace and this concept is enough. 

The guidance is fine, however, do we really need it. 

The guidance is fine.

From an OSHA reporting standpoint, we need more clarification on the quantity that needs to be reported to OSHA.  It is vague to whether a single COVID case with no significant illness has to be reported to OSHA or not.  Or are there multiple cases through a specific timeframe.

Another challenge for employers is determination of where the actual COVID close contact occurred.  With employee working remotely, how does that apply?   Also employees who work part time in the office, exposure can happen any where.   Asymptomatic people with in the household, may have had it and did not even know.

So, I think the guidance is fine, if there is clarification about the above questions,

Thank you.

The guidelines are no longer necessary.  Existing guidelines for respiratory illnesses by other state and federal agencies are sufficient.   Small businesses such as ours are grateful that the Permanent Standard was revoked but, in our view, the current state of Covid, and its trajectory, require neither regulations or guidelines.  

SENT VIA VIRGINIA TOWNHALL (townhall.virginia.gov)

April 27, 2022

Commissioner Gary G. Pan

Department of Labor and Industry

Main Street Center

600 East Main Street, Suite 207

Richmond, Virginia 23219

Re:      Guidance for Employers to Mitigate the Risk of COVID-19 to Workers

Dear Commissioner Pan:

On behalf of the Virginia Hospital & Healthcare Association’s (“VHHA”) 26 member health systems, with more than 104,000 employees, thank you for the opportunity to comment on the Department of Labor and Industry’s (the “Department”) Guidance for Employers to Mitigate the Risk of COVID-19 to Workers (hereafter referred to as the “COVID-19 Guidance”). We strongly support rescission of the COVID-19 Guidance.

As a general matter, we are concerned that the COVID-19 Guidance will create confusing or contradictory recommendations that could lead to implementation of measures that do not consider the latest data or scientific evidence of preventing the contraction or spread of COVID-19. The Centers for Disease Control and Prevention (CDC) has continuously issued guidance throughout the COVID-19 pandemic and is widely relied upon by employers in Virginia and throughout the country as a source of current, evidence-based practices to be implemented as incidence of the disease ebbs and flows over time. By introducing a separate set of recommendations, it is highly likely that the COVID-19 Guidance may be in conflict with more current CDC guidance and will create confusion, without providing additional value for employers or the public.

Any guidance issued by the Department, including the COVID-19 Guidance, should specifically exclude Virginia’s hospitals and health systems in order to prevent such contradictory or confusing guidance from the Department.  As we have commented to the Department previously, hospitals and health systems already possess strong expertise in infection prevention and control and are best situated to design effective measures to protect employees and the public. Infection prevention and control is a daily, ongoing focus within Virginia hospitals and health systems. Operating under the oversight of the CDC, the Centers for Medicare & Medicaid Services (CMS), the Virginia Department of Health (VDH), and various other accreditation and regulatory authorities, hospitals and our ancillary facilities are required to consistently demonstrate that their patients and staff receive and provide care in a safe environment. This includes development and implementation of comprehensive infection control plans, quality improvement programs, managing supply chain, training employees and caregivers, ensuring employees have the resources they need, planning for future health emergencies, and working with congregate care settings to institute strong infection control practices, among other activities.

In addition to these general concerns, the COVID-19 Guidance frames its content as “general COVID-19 recommendations that may be implemented in the workplace” while also noting that “[t]he Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.” Statements such as these introduce additional liability from impermissible employment actions and, from the perspective of health care employers, interfere with the need to implement evidence-based infection and prevention and control practices appropriate to ensure the safety of employees, patients, and the public.

Furthermore, the COVID-19 Guidance includes the following two paragraphs that, when read together, are confusing:

During this transition period of near normalcy, the Commonwealth of Virginia and the Department of Labor and Industry support and respect the rights of individuals to choose whether to wear masks or to not wear masks in non-federally mandated environments, unless required by law or as medically appropriate in cases of acute illness or in certain healthcare environments.

The Commonwealth of Virginia and the Department of Labor and Industry will not allow or condone illegal discrimination based on wearing or not wearing masks, and people should not be fired or terminated for not wearing a mask, except as noted above, or unless required by federal law.

It appears these statements would prohibit employers from terminating an employee for not wearing a mask, except in federally mandated environments, where required by law, as medically appropriate in cases of acute illness, or in certain healthcare environments. While we generally agree these exceptions would not create a conflict in application, we are concerned that the full breadth of state and federal laws or regulations or appropriate circumstances that may require mask wearing are not captured in these specified exceptions. It is also unclear from the COVID-19 Guidance what would constitute “illegal discrimination” in the context of mask wearing and it may be helpful to cite to the specific state or federal laws or regulations that do not permit discrimination on this basis.

In closing, while the COVID-19 Guidance is welcome departure from the Department’s previous COVID-19 workplace regulations, the COVID-19 Guidance we maintain that such guidance only serves as a means of further confusing employees and employers or contradicting existing requirements or recommendations from the CDC and other regulatory authorities that are widely adopted. We are also concerned that the COVID-19 Guidance may rise above a mere “recommendation” and instead place additional regulatory requirements on employers and corresponding liability. Over the past two years, employers have been implementing an array of regulations, guidance, and recommendations from federal and state authorities, and we now need to begin to streamline regulation and avoid unnecessary conflict among competing regulation. Accordingly, we respectfully request that the Department not implement the COVID-19 Guidance.

Sincerely,

Sean T. Connaughton

President & CEO

As some of the other commenters note, Virginians are being subjected to an impossible, overly complex and utterly contradictory miasma of regulatory power-grabs, both by the prior administration of Governor Northam and by the unelected bureaucrats at the CDC.  As recent federal court rulings have shown, these people are not legally empowered to mandate face coverings or forcible injections of experimental (or other) medications into citizens of the Commonwealth.  Your primary focus, then, should be on protecting Virginians from further abuse at the hands of governmental overreach.

End the emergency "powers" that purportedly undergird all the regulatory contradictions.  End Virginia's relinquishment of its sovereign governing powers to the unelected, politically driven, and self-interested (in covering up all their prior abuses and errors in public health policy) leaders at the CDC.  Virginians did not vote to be governed by the CDC - in fact, they rejected that governance very clearly at all levels of Virginia's government just a few months ago.  Adopt guidance that protects the bodily autonomy of Virginia's citizens to be free from forcible face-coverings or injections and the discrimination, physical harm, ostracization and "othering" that those practices foster.  Protect employees whose choice to be mask free or injection free is being discriminated against by overreaching employers who refuse to acknowledge natural immunity or the utter failure of injections and masks as a method to inhibit or stop the spread of COVID-19 (or any respiratory virus).  Over 100 years of public health policy and accepted science has been abandoned through overreaching government fiat and diktat in the last 2 years.  End that abuse now and return to health policy grounded in a century of science restrained by and weighed against inalienable Constitutional rights of the individual.