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

June 23, 2022June 23, 2022Megan Shaked Leave a comment

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 Enforcement and Regulatory Update [Webinar Recording]

March 17, 2022March 17, 2022Theresa Green Leave a comment

On Tuesday, March 15, 2022, Andrew Sommer, Fred Walter, and Megan Shaked presented a webinar regarding a Cal/OSHA Enforcement and Regulatory Update.

This has been a challenging year for California employers navigating the COVID-19 pandemic with a set of ever-changing regulatory requirements, as well as a flurry of other new workplace safety laws the legislature passed towards the end of 2021. This update covered the latest legislative and rulemaking developments concerning COVID-19, including the second re-adopted COVID-19 Emergency Temporary Standard (ETS). We will also cover other laws creating new workplace safety requirements and expanding the Division of Occupational Safety and Health’s (DOSH) enforcement authority.

During this webinar, participants learned about: Continue reading →

Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard [Webinar Recording]

June 22, 2021June 22, 2021Theresa Green Leave a comment

On June 18, 2021, Andrew J. Sommer and Eric J. Conn presented a webinar regarding Cal/OSHA’s Revised COVID-19 Emergency Temporary Standard.

The saga around Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) has taken several bizarre twists and turns. After hurriedly adopting the ETS over Thanksgiving weekend 2020, Cal/OSHA set about this spring to fix some problems with the initial ETS regulatory text. The agency proposed a revised version of the ETS to be considered by the Cal/OSHA Standards Board in late May 2021, but on the eve of that Standards Board meeting, Cal/OSHA pulled it back, purportedly to address the CDC’s updated guidance about masks and distancing for vaccinated workers. Inexplicably, however, Cal/OSHA produced an updated proposed amended ETS that was more onerous, not less.

On June 3, 2021, the Cal/OSHA Standards Board convened a special meeting to consider the revisions to the ETS. The public meeting was long and contentious, with 100+ stakeholders testifying lasting late into the evening. Initially, the Board voted to Continue reading →

Cal/OSHA’s COVID-19 ETS To Be Updated This Week — And They Mean It This Time

June 16, 2021August 9, 2021Megan Shaked Leave a comment

By Andrew J. Sommer and Eric J. Conn

We are barreling towards major changes to Cal/OSHA’s COVID-19 requirements for California employers expected to take effect on Thursday or Friday of this week.

After the back and forth with the last revised ETS that was voted down, then approved minutes later, the clawed back a few days later to make way for another revised ETS, late last week, Cal/OSHA released the new revised text for its COVID-19 ETS.

The text of what appears now to become the official updated version of Cal/OSHA COVID-19 ETS is available here, and a redline comparison with the presently effective text is here. Additionally, DOSH has just issued these FAQs clarifying the intent of the proposed revised COVID-19 ETS.

Below is our summary of the major substantive changes coming to the ETS, as compared to the prior proposed revisions (subsequently withdrawn), as well as highlighted guidance that interprets or expands on these anticipated new regulatory requirements.

Substantive Revisions to the ETS Text

As expected, these latest changes were limited given the short window for issuing revisions following the Standards Board’s special meeting earlier this week. We understood Continue reading →

Cal/OSHA Standards Board Votes Down – Then Revotes to Adopt, with Reservations – Cal/OSHA Revised COVID-19 Emergency Temporary Standard

June 4, 2021June 7, 2021Megan Shaked Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Yesterday, June 3, 2021, the California Occupational Safety and Health Standards Board (Board) convened and, in a bizarre turn of events, voted against, and then, moments later, voted to approve, Cal/OSHA’s revised COVID-19 Emergency Temporary Standard (ETS). The revised ETS is expected to take effect on June 15, 2021.

The Board initially voted 4-3 against adoption of the revised ETS, and next voted to set up a Subcommittee of three Board members to meet with the Division of Occupational Safety and Health (Division) to make the rule “better.” The Board members rejecting the proposal had expressed concern over the clarity of the vaccination documentation requirement, the continued use of face masks in the workplace, and the mandate for employers to provide N95 respirators for unvaccinated workers. Yet, the stated goals for this Subcommittee are ambiguous, to say the least.

At that point, the Board members expressed concern about the existing ETS remaining in effect indefinitely in the meantime, and took a break apparently to confer over whether to reconsider their earlier vote. After returning to the meeting, the Board voted unanimously, without explanation, to Continue reading →