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 →
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:
The 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 →
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 →
2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage. In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace. We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data. Unless otherwise indicated, these new laws will take effect on January 1, 2021.
On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually). The Emergency Rule was then presented to California’s Office of Administrative Lawfor approval and publication. The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.
The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee. The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading →
The Cal/OSHA Defense Report is a blog designed to bring California employers recent developments in workplace safety and health law, but not just to note that something has happened, but to talk about why California employers should care, and how it will affect their business.
We started the Cal/OSHA Defense Report blog because we frequent several useful blogs dedicated to practical day-to-day workplace safety & health issues, but none that dive deep into workplace safety & health legal and regulatory issues, especially not focused on the unique regulatory environment in California. This new blog is intended to fill that void.
The Cal/OSHA Defense Report will be the place to go to learn about significant new developments from California’s Division of Occupational Safety and Health (Cal/OSHA) and the Cal/OSH Standards Board. The blog will cover such topics as Continue reading →
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 Continue reading →
Last month, the Cal/OSH Standards Board issued a 15-day Notice of Proposed Modifications to what would become the permanent wildfire smoke rule. The proposed changes are not major, mostly clarifying that one of the methods for determining the Air Quality Index for particulate matter 2.5 is the Interagency Wildland Fire Air Quality Response Program.
Another change to be expected in the final rule is a revision to the Appendix B training instructions to address cleaning and maintenance of reusable respirators, purportedly to address critical shortages of N95 respirators exacerbated by the COVID-19 pandemic. While anything that extends the supply of N95 masks is welcome, that change alone is not nearly enough to solve a massive compliance problem created by the rule. With the Wildfire Smoke Rule, DOSH requires workers exposed to wildfire smoke be supplied with N95 respirators, and it does not consider surgical masks to be acceptable substitutes. DOSH concedes that N95 respirators are generally not available to any but medical workers right now, but they have no recommended substitutes.
That was one of the primary points of emphasis in our coalition’s comments — the rule needed to include some flexibility around the requirement for employers to supply N95 respirator masks for all potentially affected workers. There were already problems with N95 shortages even before the COVID-19 pandemic, but now, the shortage is extreme, and with the CDC’s and OSHA’s recommendations that all supplies of N95s should be reserved for the healthcare industry obviously makes compliance with a a rigid N95 requirement for wildfire smoke protection impossible for most employers. Now in the midst of another wildfire season in California, employers are continuing to experience N95 shortages.
Confirmed by a positive laboratory test of a respiratory specimen; and
“More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading →
On behalf of a diverse coalition of employers, Conn Maciel Carey submitted written comments and presented key comments at the Cal/OSH Standards Board’s May 21, 2020 meeting concerning the proposed permanent rule on protection from wildfire smoke. The coalition raised a host of concerns about the rule, from the potentially broad application of the rule to the inflexible respiratory protection and hierarchy of controls requirements.
Current regulations are not sufficiently specific as to what employers are required to do during wildfire events. This results in confusion on behalf of both employers and employees, leaving many employees unprotected…. As wildfire seasons worsen, the proposed regulation will avoid a potential increase in debilitating and sometimes life-threatening illnesses faced by workers exposed to wildfire smoke.
The Emergency Standard
The emergency standard (which is still in effect) requires California employers to take steps to protect employees who may be exposed to wildfire smoke. Importantly, the regulation covers “workplaces” rather than employers of a particular size or scope of service. It applies in workplaces where:
The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants, and
The employer should reasonably anticipate that employees may be exposed to wildfire smoke.