By Conn Maciel Carey’s COVID-19 Task Force

On September 17, 2020, the Standards Board voted to grant a Petition filed by the worker advocacy group WorkSafe to promulgate a general industry emergency COVID-19 regulation.  This emergency temporary standard will almost certainly be followed by the development of a permanent infectious disease standard.  The intent of the rulemaking is to set specific, enforceable requirements and prohibitions for California employers, whose employees may be exposed to COVID-19 in the workplace, but who are not covered by Cal/OSHA’s existing Aerosol Transmissible Diseases (ATD) standard (generally applicable to healthcare operations).

Serious Concerns About the Likely Proposed Emergency Regulation

Although Cal/OSHA has not yet published a proposed standard, the WorkSafe petition included a proposed rule that sets specific requirements for identifying and evaluating COVID-19 workplace hazards, responding to COVID-19 exposures, and conducting employee training, among numerous other requirements.  The scuttlebutt we are hearing suggests the Standards Board is likely to follow the WorkSafe’s proposed model for both this emergency rule and a follow-up permanent infectious disease standard.

Regardless of the approach the Standards Board follows, it will be imperative for the employer community to have its voice heard in the rulemaking process, with a set of robust comments and other advocacy.  But if the agency does try to run with a proposal like the one WorkSafe designed, we have already identified numerous potential concerns for employers, including:

1. Requirement of a “Competent Person”: Requires California employers to maintain on site a competent person who is “knowledgeable in infection control principles,” and designate alternates for whenever the competent person is off site.

2. Immediate Updates to the “Compliance Action Plan”: Requires that employers prepare or update their “Compliance Action Plan (CAP)” within 10 business days of any “new state or local law, regulation or order, including any guidance documented issued by DOSH or [the California Department of Public Health].”

3. Vague Requirements regarding Personal Protective Equipment (PPE): Requires employers to provide PPE, including respiratory protection, but it is not clear what PPE would actually be expected under this term.

4. Employment Law Mandate about Missed Work: Requires that employers not “penalize” workers for missing work, which is not a health and safety standard at all.

5. Unique Definition of Close Contact: Requires employers to notify individuals who “may have been within 6 feet of the diagnosed employee for more than 10 minutes,” which is inconsistent with current guidance, even as recently updated by the CDC.

6. Job Hazard Analysis: Requires employers to distribute to each employee a list of all protective measures taken.

7. Rigid Social Distancing Requirements: Requires ensuring 6 feet of distancing “at a minimum, at all times,” which is not feasible in many workplaces, or even necessary depending on respiratory protection and other factors.

8. Vague “Ventilation” Requirement: Compels installation of “ventilation systems,” regardless of an employer’s size or the nature of its operations.

Status of the Emergency Rulemaking Process

As background, emergency rulemaking may be initiated directly by the Division of Occupational Safety and Health (DOSH), the Standards Board after an emergency is identified, or, as is the case here, through a petition process by any member of the public.  Under that process, both the Standards Board’s and DOSH’s staff are required to complete an evaluation of the petition and present it to the Standards Board with a recommendation for a vote.  Interestingly, the Standards Board’s staff recommended that the WorkSafe petition be denied because most of the proposed requirements are already addressed under Cal/OSHA’s existing Injury and Illness Prevention Program Standard, as well as other existing specific regulations.  DOSH’s staff, on the other hand, recommended that the Petition be approved, finding that an emergency regulation is warranted and “would strengthen, rather than complicate, [DOSH’s] enforcement efforts.”

The Standards Board has ordered DOSH to work with Standards Board staff to submit a proposal for an emergency regulation to protect all workers from COVID-19 exposure in the workplace that is not covered by the ATD Standard.  In the event the Standards Board follows-through and adopts an emergency regulation, an advisory committee will be convened to consider “reasonable and necessary improvements” through regular re-evaluations of the emergency rule, as well as, through a permanent rulemaking for an infectious disease standard.  Here’s a very simplified flowchart of the emergency standards rulemaking process.

The rulemaking process is now at the stage where the Standards Board is awaiting DOSH’s proposed regulation.  Before the Standards Board can adopt any proposal, there is a short notice period (at least 5 days) and comment period (at least 5 days).  After a review of public comment, the emergency proposal will be put to the Standards Board for approval, submitted to the Office of Administrative Law (OAL) for approval, and filed with the Secretary of State.  It will then become effective immediately for 180 days, with the possibility of extensions, as we saw several times with the Wildfire Smoke Rule before the rulemaking to make it permanent.  Within the 180-day effective period (or in subsequent extension periods), the Standards Board will very likely proceed with regular rulemaking, including a more extensive public comment period, for a permanent infectious disease standard.

Next Steps in Forming an Employer Coalition

We would like to hear from you about the possibility of partnering with us and other trade associations and employers to continue to monitor these rulemaking developments and participate in the rulemaking process to ensure industry’s interests are addressed.

The more associations and employers that join this effort, the more the costs can be spread among the coalition membership.  However, conscious of the need to forecast legal fees, we have estimated a budget for this work and expect fees to be fixed at $7,500 for trade associations and $3,500 for individual employers.  The fees will cover our efforts to track and monitor the rulemaking, prepare comments on the proposed rule, engage with Cal/OSHA through any public hearings or private audiences we can arrange in an effort to advocate the Coalition’s position, and to educate the coalition members about the final rule.

While regular rulemaking typically takes years to complete, emergency rulemakings can be “lightning” fast, with the entire emergency rulemaking process usually taking just a few months, and initial public comment periods being as brief as five days. This means that we need to be organized in advance so we have an opportunity to be heard and impact the shape and scope of an emergency regulation.  The Standards Board has requested DOSH’s report and a proposed rule to consider by its November 19, 2020 meeting.  They have been known to miss a deadline, though.

We look forward to hearing from you as soon as possible after you have a chance to review these materials.  We hope you are interested in partnering with us in this effort, and look forward to the opportunity to work with you on this important project.  As always, remain safe.

For Conn Maciel Carey LLP

Eric J. Conn
Chair of the Workplace Safety Practice
617.256.8666
econn@connmaciel.com

Andrew J. Sommer
Head of the San Francisco Office and Cal/OSHA Practice
415.268.8894
asommer@connmaciel.com

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Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.