COMMENTS (Part I) REGARDING DRAFT REGULATIONS GOVERNING MEDICAL SERVICES & FIRST AID STANDARDS FOR THE GENERAL & CONSTRUCTION INDUSTRY

On behalf of the Virginia Retail Merchants Association (“VRMA”), the Virginia Hospitality & Travel Association (“VHTA”), the Virginia Manufacturers Association (“VMA”), and the National Federation of Independent Business (“NFIB”), we appreciate the opportunity to comment on the Draft Regulations Governing Medical Services and First Aid Standards for the General and Construction Industry (“Proposed Regulations”).  Our comments will address two problematic aspects of your proposed regulations: 1) lack of regulatory clarity; and 2) an incomplete fiscal analysis including a general misunderstanding of the applicability of such an all encompassing regulatory change for all businesses in Virginia.

VRMA, VHTA, VMA and NFIB all agree with the expressed concerns regarding the provision of rapid medical services to critically injured employees, the need for clear and unambiguous regulations, and the need to clarify the regulations for employers of mobile work crews. We cannot, however, agree to that the proposed changes accomplish any of those goals.  In fact, our analysis indicates that your language may actually lessen the number of employers in ultra hazardous industries who have to provide medical care on site, while at the same time unwittingly trapping many others who very rarely have employees exposed to workplace hazards that would cause serious physical harm or death.  Specifically, our primary concern is that the Proposed Regulations are overreaching in terms of regulating all businesses in Virginia and, given the state of the Virginia economy, if implemented, will make the costs of compliance a business ending decision for some employers. Thus, in light of the foregoing concerns VRMA, VHTA, VMA and NFIB offer the following recommendations. 

I.                   Regulatory Clarity:

VRMA, VHTA, VMA and NFIB all support safe workplace environments and we support clarity in regulations.  The proposed regulations, as proposed, would actually lessen the safety for some individuals in the workplace and add additional undefined and confusing regulatory language to what was heretofore a balanced, targeted, industry specific federal regulatory scheme. Under the current regulatory system, those employees in hazardous industries (logging, electric power, welding, telecommunications, labor camps, commercial dive operations, and underground construction) receive per se heightened protections. Under your proposed regulation, certain construction and general industry employers, regardless of the type of industry, would not have to provide on site medical assistance if the worksite did not contain job classifications or workplace hazards that potentially expose employees to serious physical harm or death. The exception you are creating is swallowing the general, current, common sense rule that mandates heightened industry specific protections.   Our current existing regulations, modeled after the federal requirements, contain no such exception for either general industry or construction employees and therefore provide a safer working environment to the thousands of individuals currently employed in these trades. While your proposed scheme seems to be diametrically opposed to current federal regulations, we will refrain, at this time, from commenting on the wisdom of creating state regulatory exemptions that an incongruent with existing federal law.

Additionally, the Proposed Regulation is confusing since it contains two different “triggers” for employers to determine when they need to have someone trained in CPR. First, in proposed 16 VAC25-95-10 (A), the standard test or “trigger” would be hazards that “could potentially expose” employees to the enumerated harms.  Later in the same regulation, in paragraph (F), there is an exemption for all employers that do not have workplace hazards that actually expose employees to serious harm or death. Employers will be confused by this standard, is the test a worksite that “potentially” exposes an employee to the harms or a worksite that actually exposes the employee to one of the harms. Within our organization we have many employers who will not be able to logically determine if they are required to provide the services this Proposed Regulation is attempting to mandate.  What will be the test to determine whether a retailer or other employer with a loading dock, an on site meat grinder, or a forklift has to comply with this regulation. What if an employer only occasionally uses these implements?  What if they only use them once or twice a year? The proposed regulation provides much less clarity than the current regulatory framework.

Although you state that the current OSHA requirements are “overreaching,” this Proposed Regulation suffers from that exact problem.  While we see general statements contained in your description that the proposed regulation will exclude worksites that “do not contain such serious hazards,” your regulation, once again, provides little of no definitional guidance as to what that means and in fact, addresses additional sites that could “potentially” expose employees to such harm.  As we have explained, many of our retailers and other employers have mixed use sites where there may actually be hazards of some small degree.  Whether the hazard is of such a degree as to be classified as one that causes “serious physical harm” is a question of interpretation.  Under the current regulatory framework, certain industrial classifications are clearly required to provide enhanced medical services on site.  Your proposed change confuses what has been a logical, industry wide, risk specific framework, and creates a new regulatory scheme which is not even clear to various state agencies.  For example, the Department of Planning and Budget disagrees with your offices general interpretation that this regulation will not apply to many retailers.  As DPB states:

The proposed amendments will affect all employers in Virginia. . . . Within a particular industry that is normally considered to be low hazard, there may be some specific work sites or portions of the establishments that have job classifications or workplace hazards that would fall under the more stringent requirements of the proposed regulation. For example, a large department store that has service personnel who deal directly with customers who would not be exposed to serious or life-threatening hazards may also have warehouse personnel who operate forklifts and are therefore exposed to such hazards. As another example, a supermarket may have retail clerks who are not exposed to serious hazards, but may also have personnel using potentially dangerous equipment, such as a meat slicing machine. Therefore, although some businesses in the areas of Retail or Wholesale Trade may only have office workers, the section could not be considered exempt from the proposed regulation. (emphasis added).

Your office has already opined that the general regulation will NOT affect most retailers.  Our retail members would thus be faced with a compliance dilemma if this regulation goes forward in its current form.  Should such employers spend the time, effort and financial resources (possibly closing there doors while they are trying to obtain the mandated training) to comply if they might have a hazard, or should they comply only if DOLI determines they have a hazard that causes “serious” physical harm, or what about the case where they “potentially” may have a hazard, or even the case where they don’t actually expose an employee to these harms, but yet the harms are somewhere in the workplace. What is the definition under this regulation of “potentially?”

Finally, some of your comments to the regulation are confusing and do not match the proposed regulatory framework.  For example you appear to state that your “proposed regulation will exclude worksites that do not contain such ‘serious’ hazards,” yet the regulation is written in terms of exposure of employees to serious physical harm or death.”  Is the standard to be applied one of “serious hazards” or one “serious physical harm.”  Does serious physical harm equate with serious hazard, if so, why is that standard not written into the regulation?  The regulation speaks in terms of workplace hazards not serious workplace hazards. Are all non serious workplace hazards thus excluded from this regulation. We also wonder about job classifications.  Is the Department going to classify some job classifications as “serious” and would that classification equate to only those that expose employees to “serious harm or death?”  Once again, we feel the regulation is not providing any clarity to our members in what had been a fairly simple regulation based on industry specific criteria.

(To be continued)

Thomas A. Lisk, Esquire

LeClairRyan, A Professional Corporation

951 East Byrd Street, 8th Floor

Richmond, VA 23219

(804) 343-4087

Thomas.Lisk@leclairryan.com