By Conn Maciel Carey’s COVID-19 Task Force

Earlier today, we shared an update about Cal/OSHA’s fast-moving rulemaking for an emergency COVID-19 prevention rule, along with a detailed summary of how we got here, as well as an outline of what the California rule will require.

We wanted to give you an update as soon as we heard, and we just heard… OAL has officially approved Cal/OSHA’s emergency COVID-19 prevention regulation.  OAL’s website was just updated with this entry:

And here is the Cal/OSHA website reflecting the current status of the rule and the final approved regulation language: “Text Approved by OAL.”

As Cal/OSHA’s website notes, the rule was filed with the Secretary of State today, and it is immediately effective – all provisions.  However, during the Board’s final public hearing about the rule, the Division signaled there would be some reasonable delay in enforcement.  Specifically, Division Chief Doug Parker told the Standards Board:

“Some employers are going to need more time. We intend to fully take that into account in determining how they’re implementing the rule….  The Division will consider ‘good-faith’ efforts on the part of employers and will offer compliance assistance.”

Be cautious about that, however, as the agency has not issued anything formal conveying this enforcement discretion, and to the extent the new rule merely formalizes some requirement Cal/OSHA already believed it had authority to enforce under the IIPP rule, do not expect any leniency.  Be sure to document the efforts you are taking to come into compliance, especially where coming into full compliance will take a little time.

Here is what will happen next:

• Guidance / FAQs:  Cal/OSHA has indicated that it will soon be issuing FAQs and other guidance as early as this week that will hopefully “clarify” some of the provisions that we have flagged as ambiguous or problematic in our comments and other discussions with the Division.  For example, we anticipate some guidance confirming that employers may carve up the workplace into separate segments relevant to the notices and testing required at an “exposed worksite.”  We are also pressing for some guidance around the testing requirement after outbreak events (where, what form, and whether offering testing is sufficient, etc.).

[UPDATE – Late on the day on December 1st, Cal/OSHA did issue FAQ guidance about the emergency rule.  Here is a link to that guidance.  There are some very helpful nuggets in here, including clarity around limitations to how you count cases for an outbreak and what subset of employees may be covered by the testing and notification requirements.  We anticipate more guidance from Cal/OSHA as time passes.]

• Advisory Committee:  During the Standards Board hearing about the rule, the Board pushed the Division to convene an Advisory Committee as soon as possible to address some of the concerns about the rule that the Division and Board acknowledged even as they advanced it through the process.  We hope the first Advisory Committee meeting will occur in December, but with the holiday schedule, it may not be until after the New Year.  Advisory Committee meetings allow for stakeholders to speak directly to the Division staff and advocate for changes/clarity to the rule.  Any changes that will be made to the rule based on the Advisory Committee process will take some time to be memorialized and presented to the Standards Board for amendment of the rule, so we are probably at least two or three months away from official amendments approved by the Cal/OSH Standards Board.

To this point in the rulemaking, Conn Maciel Carey has worked with a broad coalition of California and national employers to evaluate the emergency rule in its proposed rule form, and developed comments that raised a number of serious concerns, not only about the substance of the rule, but also about the extremely rushed nature of the rulemaking process, as well as these additional comments submitted to California’s Office of Administrative Law, the final gatekeeper for new regulations. We will continue to gather feedback from employers about issues with the emergency rule as employers begin to implement it now, to present them to the Division through the Advisory Committee process.

In the background, Pfizer and Moderna seem to be on the verge of submitting applications to the FDA for emergency use authorization of effective COVID-19 vaccines.  So hopefully all of this will be moot in the near future.

In the meantime, contact any of the attorneys in Conn Maciel Carey’s national OSHA Practice if you need help quickly moving into compliance with Cal/OSHA’s new emergency rule.