State OSH Plans

State Plan Signals 2025-2026

Theresa Jordan Leave a comment

By Darius Rohani-Shukla

While Federal OSHA establishes the baseline for OSHA standards, it is increasingly no longer the full story for employers. Indeed, the real compliance challenge today is keeping up with state plans as rules, guidance, and enforcement priorities can change quickly and diverge significantly. States are pushing hard on operationally complex, enforcement-friendly issues such as heat, ergonomics, workplace violence programs, and inspection procedures. This post highlights some of the developments from the past six months most likely to matter in practice.

Arizona: Turning up the Heat on Temperature Safety Guidance

In 2025, Arizona Governor Katie Hobbs issued Executive Order 2025-09, directing the Arizona Division of Occupational Safety and Health (ADOSH) to lead the state’s heat safety efforts. By the end of the year, ADOSH’s Workplace Heat Safety Task Force delivered recommendations calling for written Heat Illness Prevention Plans and core protections such as water, rest, shade, acclimatization, and training. Although Arizona does not yet have a codified heat standard, ADOSH’s Heat State Emphasis Program, guidance, and enforcement activity are already shaping employer expectations around heat hazards.

Washington: Warming up to Indoor Heat Rules Continue reading →

Michigan Lawmakers Consider Raising MIOSHA Penalties to Match Federal Levels

Theresa Jordan Leave a comment

By Tony Casaletta, Valerie Butera, and Darius Rohani-Shukla

On October 23, 2025, the Michigan Senate Labor Committee heard testimony on Senate Bills 49 and 50 (SB 49–50) — legislation aimed at raising Michigan Occupational Safety and Health Administration’s (MIOSHA) civil penalty authority to match federal OSHA penalty levels. Supporters of the bills, including lawmakers and safety officials, emphasized that updating Michigan’s penalty structure is crucial to keeping the state in compliance with federal requirements and preserving Michigan’s authority to effectively regulate workplace safety. Without these adjustments, Michigan risks losing its approved State OSH Plan status, which allows the state to manage its own occupational safety and health program rather than defaulting to federal OSHA jurisdiction over Michigan workplaces.

Both bills would also shift MIOSHA administration and enforcement responsibilities from the Department of Licensing and Regulatory Affairs (LARA) and Department of Health and Human Services (DHHS) to the Department of Labor and Economic Opportunity (LEO). This centralization is intended to streamline oversight and align MIOSHA with broader labor and employment policy initiatives.

Why the Change Is Needed Continue reading →

MIOSHA Aligns with Federal OSHA’s Controversial New Worker Walkaround Rule: What Michigan Employers Need to Know

Anthony Casaletta Leave a comment

By Valerie Butera, Anthony Casaletta, and Darius Rohani-Shukla

Michigan employers, take note: as of March 4, 2025, the Michigan Occupational Safety and Health Administration (MIOSHA) has officially amended Administrative Rule Part 13 – Inspections and Investigations, Citations, and Proposed Penalties to align with federal OSHA’s newly finalized Worker Walkaround Representative Designation Process Rule. This change significantly alters how employee representation works during MIOSHA workplace inspections—and carries substantial implications for employers across the state.

What Changed?

The amendment to MIOSHA’s Admin. Part 13 was prompted by federal OSHA’s update to 29 CFR 1903.8(c), which provides that a non-employee third-party may serve as an employee representative during an OSHA inspection and accompany the Compliance Safety and Health Officer (CSHO) during the physical inspection of the workplace. MIOSHA’s rule now mirrors this federal standard, allowing third-party representatives to accompany CSHOs during inspections when deemed “reasonably necessary.”

In plain terms, this means employee walkaround representatives no longer need to be employees of the company being inspected. Union representatives, attorneys, community organizers, and others can now potentially participate in inspections—even at non-union workplaces—if OSHA or MIOSHA determines they bring relevant skills, knowledge of hazards, or even language fluency needed for the inspection.

The Backstory: From Legal Fight to Final Rule Continue reading →

Trump 2.0, OSHA: Expect Shifts in Federal Enforcement and Rulemaking Priorities As Well As More Aggressive State Plan Enforcement

Scott Hecker 5 Comments

By Scott Hecker, Rachel L. Conn, Eric J. Conn, and Aaron R. Gelb

As the dust settles on the 2024 Election Cycle and the pundits continue analyzing and dissecting the results, the OSHA/MSHA Team at Conn Maciel Carey draws from decades of experience representing employers during Republican and Democratic administrations to forecast how the workplace safety and health landscape may change with respect to enforcement, compliance assistance, and rulemaking under a second Trump Administration.

Enforcement Resources and Priorities

At the federal level, history can provide insight into the likely priorities of a second Trump term.  As loyal readers of this blog know, OSHA operated without a confirmed Assistant Secretary for the entirety of the first Trump Administration.  While agencies lacking Senate-confirmed leaders can feel adrift and directionless, with confusion about roles, responsibilities, and priorities, it was essentially business as usual at OSHA under Trump—at least until COVID-19 hit—with other agencies facing more focused efforts to deregulate.  While it is not yet clear how quickly the second Trump Administration will turn its sights to OSHA, we’re unlikely to see a push to increase OSHA’s budget or even to backfill enforcement personnel who leave the agency.  OSHA had the fewest compliance officers in its history during the Trump Administration, and despite efforts by President Biden to increase staffing levels, the number of enforcement personnel is sure to ebb again.  Fewer compliance officers will lead to decreased enforcement activity, as well as overwhelming workloads for remaining employees, and such a combination often results in reduced morale.

OSHA under Trump 2.0 is likely to adopt more employer-friendly policies than President Biden’s current administration and could: Continue reading →

Maryland OSHA’s New Heat Stress Standard

Anthony Casaletta 4 Comments

By Anthony Casaletta

Big news out of Maryland this week, and no we’re not talking about the Raven’s win over the undefeated Buffalo Bills.  Rather, the Maryland Occupational Safety and Health Administration (“MOSH”) is now the first State Plan on the East Coast, to develop and enact a specific Heat Stress Standard, which went into effect on, September 30, 2024.

As of August 2024, only five States – California, Minnesota, Oregon, and Washington – had promulgated specific heat standards.  State standards differ in the scope of coverage. For example, Minnesota’s standard covers only indoor workplaces. Washington’s standard covers only outdoor workplaces. California similarly covered only outdoor workplaces until June of this year, when it promulgated a companion indoor heat illness standard, like the State of Oregon. State rules also differ in the methods used for triggering protections against hazardous heat. Minnesota’s standard considers the exertion-level of the work being performed (light, moderate, or heavy) and provides Wet Bulb Globe Temperature thresholds based on the type of work activity. California’s heat-illness prevention protections go into effect at an ambient temperature of 80°F. Washington’s rule also relies on ambient temperature readings combined with considerations for the breathability of workers’ clothing. Oregon’s rule sets a trigger based on heat index at 80°F. California, Washington, Colorado, and Oregon all have additional protections that are triggered by high heat. However, they differ as to the trigger for these additional protections.  In California and Colorado, high heat protections are triggered at an ambient temperature of 95°F (only applicable in certain industries). In Washington and Oregon, high heat protections are triggered at an ambient temperature or heat index of 90°F.

All the State standards require Continue reading →

Cal/OSHA’s Indoor Heat Illness Regulation Now in Effect

Megan Shaked 2 Comments

Following on the heels of Fed/OSHA’s recent release of the unofficial version of its Indoor and Outdoor Heat Illness Prevention Notice of Proposed Rulemaking (“NPRM”), on July 24, 2024,  the California Department of Industrial Relations issued a press release stating that the Office of Administrative Law (OAL) approved the Cal/OSHA Indoor Heat Illness regulation and that the regulation goes into effect immediately. While the Cal/OSHA Indoor Heat Illness Prevention regulation has been in the works for some time, Cal/OSHA announcing that the effective date is July 23, 2024, was earlier than expected. Emphasis on heat illness prevention has been the focus of many OSH agencies and these recent developments in both Fed/OSHA and Cal/OSHA continue this trend.

More information on the new Cal/OSHA Indoor Heat Illness Prevention regulation can be found on our Cal/OSHA Defense Report Blog.

Governor Newsom Appoints New Chief of the Division of Occupational Safety and Health

Samuel Rose Leave a comment

California Governor Gavin Newsom has announced that he has appointed Debra Lee as the new Chief of the Division of Occupational Safety and Health at the Department of Industrial Relations (also known as Cal/OSHA). Lee, a 30-year veteran of Cal/OSHA, had been serving as Acting Chief since Jeff Killip departed the position in January.undefined

Lee has previously served the Division as Regional Manager, District Manager, and Deputy Chief for Field Enforcement. Prior to joining the agency, Lee was an Industrial Hygienist at various companies.

The news comes as Cal/OSHA makes a push to fill numerous vacancies and struggles to recruit new talent, which will certainly be one of many issues at the Division that Lee will need to confront in the early days of this new role.

For more information on the latest Cal/OSHA updates please check out our recent blog article Extensive Rulemaking Offered at the May Cal/OSHA Standards Board and Cal/OSHA Advisory Committee Meetings blog and our Cal/OSHA Mid-Year Update webinar.

New Calif. Dept. of Health Order Drastically Changes Isolation Requirements for COVID-19 Cases

Eric J. Conn Leave a comment

On January 9, 2024, the California Department of Public Health (CDPH) issued a new State Public Health Officer Order impacting COVID-19 isolation periods. This revision, applicable to Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations, introduces changes to the definition of the “Infectious Period,” drastically reducing the isolation period for COVID-19 cases.

Notably, non-healthcare employees with asymptomatic cases are no longer required to be excluded from the workplace, and employees with confirmed cases can return within 24 hours of symptom onset under certain conditions. The new “Infectious Period” definition also significantly impacts close contacts and exposed group definitions and analysis under the Cal/OSHA Regulations.

Check out the full article on CMC’s Cal/OSHA Defense Report blog for more information about the redefined “Infectious Period” for symptomatic and asymptomatic cases and its effects on employers.

Latest Cal/OSHA Updates: Revised Indoor Heat Illness Standard Released and Advisory Committee Meeting Recap

Megan Shaked Leave a comment

By Megan Shaked, Samuel Rose, and Rachel Conn

Revised Draft Indoor Heat Illness Standard Released

On August 4, 2023, the Standards Board issued its latest revised draft of the Indoor Heat Illness Prevention Standard. During the previous comment period, there was extensive discussion regarding lowering the temperature at which the regulation would apply. However, the latest revised draft maintains the 82 degrees Fahrenheit indoor temperature trigger. Nonetheless, there were notable changes: Continue reading →

Latest Cal/OSHA Updates: Prepare For A Packed Fall

Megan Shaked Leave a comment

By Rachel Conn, Samuel Rose, and Megan Shaked

During last week’s California Occupational Safety and Health Standards Board meeting, the spotlight was on silica. But an equally clear message was front and center throughout the meeting – Cal/OSHA has a packed rulemaking agenda.

Here’s the latest on Cal/OSHA rulemaking and what to expect in the coming months:

Silica Emergency Temporary Standard

The Standards Board granted, in part, Petition 597, to amend the current regulation on Occupational Exposures to Respirable Crystalline Silica (section 5204) via Emergency Temporary Standard (ETS) to address the growing number of reported cases of advanced silicosis among workers exposed to silica in engineered stone fabrication.

Following extensive public comment, Cal/OSHA argued that an ETS would be Continue reading →

Join Conn Maciel Carey’s 2023 Cal/OSHA Rulemaking Coalition

Megan Shaked Leave a comment

For the past two years, Conn Maciel Carey has represented a broad coalition comprised of California and national employers and trade associations from a diverse range of industries in advocating to the Cal/OSHA Standards Board about the roller coaster of COVID-19 emergency and non-emergency rulemaking, in the form of preparing numerous rounds of written comments, testifying in public meetings, and participating by invitation as one of only a small number of management-side representatives on a rulemaking Advisory Committee established by Cal/OSHA for the COVID-19 regulatory process. We have been intrinsically involved in the four iterations of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS), and the COVID-19 Non-Emergency Rule that was recently adopted for a two-year term.

Those of you whose organizations participated in our California Employers COVID-19 Prevention Coalition know that together we accomplished a great deal, with material improvement for employers to the COVID-19 regulatory landscape in California. Our coalition’s input is reflected in the regulatory text of the Cal/OSHA COVID-19 ETS and now the COVID-19 Non-Emergency Rule, as well as in several batches of FAQs issued by Cal/OSHA attempting to address some of the concerns and recommendations we identified.

With the completion of the non-emergency rule now, we expect the Cal/OSHA Standards Board to transition in 2023 from the COVID-19 related rulemaking to its regulatory priorities that were forced to the backburner because of the pandemic, including work on: Continue reading →

Cal/OSHA COVID-19 Non-Emergency Rule Is Adopted

Theresa Jordan Leave a comment

By Megan S. Shaked and Andrew J. Sommer

On December 15, the California Occupational Safety and Health Standards Board voted 6-1 to adopt the COVID-19 Prevention Non-Emergency Regulations. The Non-Emergency Rule was proposed to replace the Cal/OSHA COVID-19 Emergency Temporary Standard, which has been in effect in four different versions since November 30, 2020 and is set to expire on December 31, 2022.

The Office of Administrative Law will now review the new regulation, which is expected to be formally approved, effective January 1, 2023.

Discussion from the Standards Board Meeting

During the meeting, stakeholders provided public comments on the proposed Non-Emergency Rule.  During the public comment period, Conn Maciel Carey spoke on behalf of the California Employers COVID-19 Prevention Coalition, composed of a broad array of California employers and trade groups substantially impacted by Cal/OSHA’s COVID-19 rulemaking. We urged the Board to vote “no” on the proposal, highlighting the availability of vaccinations, testing and treatment and the inflexibility of the two-year fixed term. We also Continue reading →

Cal/OSHA Advisory Committee Offers Updates on Enforcement, Rulemaking and More

Megan Shaked Leave a comment

By Megan Shaked

The Cal/OSHA Advisory Committee holds meetings throughout the year to provide information regarding its programs and activities.  At the most recent meeting, held on November 10, 2022, the public heard updates from DOSH, the Standards Board, and the Appeals Board.

Here are some highlights from the meeting.  A full video and audio recording of the meeting is available here.

Cal/OSHA Chief Jeff Killip noted his goal to try to shift the Advisory Committee meetings to balance providing meaningful data with discussion for a collaborative approach to workplace safety and health.  He also shared:

    • Cal/OSHA is hiring to fill vacancies.
    • Cal/OSHA’s heat/wildfire smoke campaigns included: 250 high heat targeted inspections this season; 299 consultations; 8 bi-weekly calls with Heat & Agriculture Coordination Program; an update to the Heat Special Emphasis Program to address Indoor Heat Hazards; an expansion of the DIR/DOSH Multimedia Heat Illness Prevention media campaign to include indoor heat; bilingual community engagement liaisons and bilingual trainers meeting with community based organizations, advocacy groups and others.
    • California had 245 events around 2022 Safe & Sound Campaign in collaboration with Washington and Oregon (week of August 15-21)
    • Cal/OSHA also participated in 2 agricultural worker events, a 4-day health symposium, and a 2-day conference for consultation.

Cal/OSHA Deputy Chief of Health and Research and Standards, Eric Berg, provided an update on the status of rulemaking: Continue reading →

[Bonus Webinar] Michigan OSHA Enforcement and Regulatory Update

Theresa Jordan Leave a comment

On Wednesday, November 30, 2022, at 1 p.m. EST, join us for a special bonus webinar in Conn Maciel Carey’s 2022 OSHA Webinar Series regarding a Michigan OSHA Enforcement and Regulatory Update.

Presented by
Anthony M. Casaletta and Eric J. Conn

We are pleased to announce that CMC’s newest addition, Tony Casaletta, a former Michigan OSHA (MIOSHA) Official who has just joined the firm as Of Counsel, will be leading our very first MIOSHA update. Prior to joining the firm, Tony spent 18 years with MIOSHA in various roles, working his way up to Health Supervisor for the MIOSHA Construction Safety and Health Division.  Through his tenure at MIOSHA, Tony specialized in industrial hygiene enforcement in both general industry and construction, managed the MIOSHA Asbestos Program, and oversaw the enforcement activities of MIOSHA’s Construction field industrial hygienists throughout the state of Michigan. In addition, Tony worked as an adjunct professor at Wayne State University where he taught in the University’s Industrial Hygiene graduate program.

Tony will be joined by the firm’s OSHA Chair, Eric J. Conn, also a proud member of the Michigan Bar. The two OSHA-specialist attorneys will provide an overview of MIOSHA’s enforcement program, the latest data and trends in MIOSHA enforcement, and other MIOSHA issues for employers to monitor.

During this webinar, participants will learn about: Continue reading →

Governor Newsom to End COVID-19 State of Emergency, While Standards Board Marches On

Megan Shaked Leave a comment

In major news yesterday, Governor Newsom announced that California’s COVID-19 State of Emergency will end on February 28, 2023.  See the following excerpts from the governor’s press release:

  • Capture“With hospitalizations and deaths dramatically reduced due to the state’s vaccination and public health efforts, California has the tools needed to continue fighting COVID-19 when the State of Emergency terminates at the end of February, including vaccines and boosters, testing, treatments and other mitigation measures like masking and indoor ventilation. As the State of Emergency is phased out, the SMARTER Plan continues to guide California’s strategy to best protect people from COVID-19.”
  • “Throughout the pandemic, we’ve been guided by the science and data – moving quickly and strategically to save lives. The State of Emergency was an effective and necessary tool that we utilized to protect our state, and we wouldn’t have gotten to this point without it,” said Governor Newsom. “With the operational preparedness that we’ve built up and the measures that we’ll continue to employ moving forward, California is ready to phase out this tool.”
  • “To maintain California’s COVID-19 laboratory testing and therapeutics treatment capacity, the Newsom Administration will be seeking two statutory changes immediately upon the Legislature’s return: 1) The continued ability of nurses to dispense COVID-19 therapeutics; and 2) The continued ability of laboratory workers to solely process COVID-19 tests.”

In contrast to Governor Newsom’s announcement, however, the Cal/OSHA Standards Board continues to advance a  proposed non-emergency COVID-19 rule, with a two-year fixed term extending well beyond the end of the State of Emergency. Just last Friday, the Standards Board issued a revised draft of the non-emergency rule providing a 15-day notice period for comments. The revised non-emergency rule provides the following substantive changes: Continue reading →

Cal/OSHA Moves Closer to Issuing Its COVID-19 Non-Emergency Standard

Megan Shaked Leave a comment

By Andrew Sommer and Megan Shaked

In July 2022, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulation. The draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

On July 29, 2022, the Standards Board issued a rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those were yesterday, September 15, 2022.  A vote on a proposed final rule is expected in late November or December, with the rule replacing the ETS and going into effect on January 1, 2023 and continuing through December 2024.

Background about the Proposed Permanent Rule

The proposed non-emergency rule (commonly referred to as the permanent rule) would apply until 2 years after effective date, with recordkeeping requirements applying until 3 years after effective date.  The most significant expansion in the proposal is the incorporation of the controversial new definition of “close contact” from the California Department of Public Health, which now means Continue reading →

Comment Period Set for Cal/OSHA’s Permanent COVID-19 Rule

Megan Shaked Leave a comment

Last month, the California Division of Occupational Safety and Health (Cal/OSHA) revealed a proposed Permanent COVID-19 regulation. The draft permanent rule is intended to replace the current version of the COVID-19 Emergency Temporary Standard (ETS) that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.

The proposed permanent rule is expected to remain in effect for two years, except for the record-making and recordkeeping provisions that would remain effective for three years.

On July 29, 2022, the Standards Board issued the attached rulemaking notice that set both the date for a meeting of the Standards Board when the proposed COVID-19 permanent rule would be debated and discussed, as well as an official due date for written comments from interested stakeholder.  Both of those are set for September 15, 2022.

The rulemaking process for the proposed permanent rule is different than with the prior iterations of the emergency COVID-19 rulemaking.  A nonemergency rule requires Continue reading →

Cal/OSHA Updates FAQs Following New CDPH Definition of Close Contacts

Megan Shaked 1 Comment

By Megan S. Shaked

With the definition of “close contacts” now focused on “shared indoor airspace” rather than the 6 feet/15 minute threshold, Cal/OSHA has updated its FAQs to assist in interpreting the various ETS requirements implicated by the new definition.

Background

When the current version of the ETS was adopted, it specified that if close contact is defined “by regulation or order of the CDPH,” the CDPH definition would apply rather than the definition provided in the ETS itself.  When CDPH issued an order on June 8 updating its definition of “close contact,” that new definition applied to the ETS.  (Cal/OSHA updated its FAQs on June 21 to make clear that the new definition applies to the ETS.)

On June 9, CDPH followed up with updated FAQs to address this new definition.

Cal/OSHA’s FAQs re New Definition of Close Contact

On Monday, Cal/OSHA added its own update to its FAQs, adding a “Definitions” section to address the updated definition of close contact: Continue reading →

Cal/OSHA Reveals a Draft of Its Proposed “Permanent” COVID-19 Regulation

Megan Shaked Leave a comment

By Andrew J. Sommer

Cal/OSHA has used up all of its “re-adoptions” of its COVID-19 Emergency Temporary Standard, so if COVID-19 regulatory requirements are to remain in effect in California into 2023, the Cal/OSHA Standards Board will need to adopt a “Permanent” COVID-19 rule. At a meeting of the Cal/OSH Standards Board last week, the Division of Occupational Safety and Health (DOSH) revealed a proposed Permanent COVID-19 rule.

Andrew J. Sommer, the Head of CMC’s Cal/OSHA Practice, was interviewed by InsideOSHA about these developments.  Here’s a link to the article with that detailed interview, and below is some additional context and background about the rulemaking.

The draft permanent rule is intended to replace the COVID-19 ETS that is set to expire at the end of 2022.  Here is a link to the agency’s draft regulatory text for the permanent rule.  The proposed permanent rule is expected to remain in effect for two years, except for the record-making and recordkeeping provisions that would remain effective for three years.

While DOSH previously indicated that the “permanent” rule would be consistent with the ETS, there are a few significant changes we have identified.  Most troubling among them, the definition of “close contact” has been made consistent with California Department of Public Health (CDPH) guidance removing the 6-foot, 15-minutes standard.  Instead, the draft defines close contact as:

Continue reading →

Cal/OSHA Updates FAQS Following Third Readoption of COVID-19 Emergency Temporary Standard

Theresa Jordan Leave a comment

By Megan S. Shaked

Now that Cal/OSHA’s Third Readoption of the COVID-19 Emergency Temporary Standard is in effect, the agency has updated its Frequently Asked Questions to reflect those revisions effective May 6, 2022.  (See our previous blog articles regarding the revisions in the Third Readoption and the Board vote to approve the readoption.)

Many of the updated FAQs simply reflect the revised ETS language itself, for example, removing references to vaccination status as the ETS requirements are no longer dependent on such status.  The FAQs have also been updated to reflect the current terminology used in the Third Readoption, for example, using “infections period” instead of “high risk exposure period.”

However, some of the updated Frequently Asked Questions provide added clarity regarding the current requirements: Continue reading →

Cal/OSHA Standards Board Approves Third Re-adoption of COVID-19 Emergency Rule

Megan Shaked 2 Comments

As expected, on April 21st the Cal/OSHA Standards Board voted to adopt the proposed third re-adoption of the COVID-19 Emergency Temporary Standard.  The Board voted 6-1, with management representative Kathleen Crawford casting the sole no vote.  The new rule iteration is set to take effect on about May 2, 2022, once approved by the Office of Administrative Law, and will remain in effect until December 31, 2022.  As mentioned in our prior blog post, the third re-adoption retains the core elements of the emergency rule but with various substantive changes.

DOSH Deputy Chief Eric Berg, in his briefing to the Board ahead of the vote, indicated that there will be FAQs issued to Continue reading →

Virginia OSHA Rescinds Its “Permanent” COVID-19 Rule and Introduces New Workplace Guidance

Eric J. Conn Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Under the direction of then-Democratic Governor Ralph Northam, the Commonwealth of Virginia was the very first U.S. State to implement a broad, all-industry programmatic COVID-19 emergency temporary standard (“ETS”) way back in July 2020.  Through all the fits and starts with federal OSHA’s COVID-19 rulemaking, VOSH’s COVID-19 regulation was a consistent presence through most of the pandemic.  Indeed, that ETS was made “permanent” in January 2021, months before federal OSHA had even adopted its COVID-19 ETS for Healthcare.

However, on his first day in office – January 15, 2022 – new Virginia Governor Glenn Younkin signed an Executive Order directing the Virginia Safety and Health Codes Board (“Board”) to determine whether there was a continuing need for these regulations (with more than a little pressure from the Governor’s office to conclude it was not).  Not surprisingly, under that political pressure, and in the wake of the Supreme Court’s harsh decision about federal OSHA’s authority to regulate COVID-19, by mid-February, the Board had adopted the position of the Virginia Department of Labor and Industry (“DOLI”) that “based on emerging scientific and medical evidence, [COVID-19] no longer constitute[s] a grave danger to employees in the workplace.”

That Board finding started a 30-day clock for public notice and comment about the Board’s intention to repeal the rule, and as expected, the Board voted on March 21st to rescind the ETS (effective March 23rd, 2022).

So where does that leave Virginia employers?  Continue reading →

VOSH Begins the Process of Withdrawing its “Permanent” COVID-19 Rule

Eric J. Conn Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Last Wednesday (February 16th), at the direction of Virginia’s new Governor, Virginia OSHA’s Safety and Health Codes Board voted to withdraw VOSH’s COVID-19 Regulation. The Board’s vote came after VOSH recommended that COVID-19 no longer constituted a “grave danger,” the legal showing required to justify an emergency rule.  Procedurally, the board vote was just the first step. Next is a 30-day public comment period, followed by a public hearing, then a final Board vote. If the measure is in fact repealed after the final Board vote, then Virginia employers would no longer have to require employees who work indoors to wear a face covering,; social distance; provide employee training; improve or maintain ventilation systems; or inform the VA Department of Health about outbreaks.

Although this move comes in lock step with Friday’s CDC announcement that it is rescinding mask guidance, along with other states like California and New Jersey rescinding their mask mandate, on January 15th Virginia’s newly elected Governor Glenn Youngkin issued an Executive Order instructing the Board to Continue reading →

Cal/OSHA Standards Board to Consider Revised COVID-19 Emergency Rule for Re-adoption

Eric J. Conn Leave a comment

CaptureThe Cal/OSHA Standards Board has issued a revised draft of the COVID-19 Emergency Temporary Standard (ETS) for a second re-adoption.  This draft shows in underlined text the latest proposed changes from the current emergency regulation (not the October draft text discussed in our prior blog post).  The second re-adoption of the ETS, if adopted, will be effective from January 14, 2022 to April 14, 2022, and then could be replaced by a “permanent” COVID-19 rule.

At its December 16, 2021 meeting, the Standards Board will consider this proposed revised ETS, as well as discuss the proposed “permanent” COVID-19 rule being considered to replace the ETS once the emergency rule expires.

Below are the areas where the ETS text proposed for a second re-adoption materially departs from the current rule: Continue reading →

California Governor Signs Bill Vastly Expanding Cal/OSHA’s Enforcement Authority

Eric J. Conn Leave a comment

By Fred Walter and Andrew J. Sommer

California Governor Newsom has just signed Senate Bill 606 authored by Senator Lena Gonzalez (D-Long Beach), broadly expanding Cal/OSHA’s enforcement authority and the penalty amounts employers may be assessed.  This new law targets employers with multiple work sites in California, recognizing violations on an enterprise-wide basis resulting from a written policy or procedure or otherwise a pattern of violations.  SB 606 also empowers Cal/OSHA to levy penalties for each violation and each employee deemed exposed to an alleged hazard where there is a finding an employer “willfully and egregiously” violated a safety order.  Lastly, the California Division of Occupational Safety and Health, also known as Cal/OSHA, is empowered to seek permanent injunctions in civil court against employers who are deemed in violation of the new law.  SB 606 will take effect January 1, 2022.

SB 606 leaves little room for California employers to make an honest mistake or to be presumed by Cal/OSHA as acting in good faith.  The new law is likely to foster a radical change in the way Cal/OSHA interacts with employers and weaken employers’ appeal rights.  It is certain that the penalties assessed for citations will increase as will the number of appeals filed with the Cal/OSHA Appeals Board.  It is therefore crucial that employers, large and small, understand these regulatory changes and take steps now to strengthen their safety programs to be as bulletproof as possible.  To that end, we have broken our discussion of the law into two key parts. Continue reading →