Cal/OSHA Proposes “Permanent” COVID-19 Prevention Rule – Under Review By Its Advisory Committee

Cal/OSHA has just convened an Advisory Committee to consider a proposed permanent Cal/OSHA COVID-19 prevention permanent rule, scheduled to meet on September 23, 2021.  Conn Maciel Carey has been invited to serve on the Advisory Committee, on behalf of the California Employers COVID-19 Prevention Coalition – composed of a broad array of California and national employers substantially impacted by Cal/OSHA’s COVID-19 standards.

Last Friday, the Division of Occupational Safety and Health (DOSH) posted the attached discussion draft for the proposed permanent rule.  If adopted, the permanent rule would expire in 2 years (subject to renewal/amendment) and replace the existing Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). We expect that upon the permanent rule sunsetting, the Cal/OSHA Standards Board might take up a permanent general infectious disease standard – which would be another battle to be waged.  There is a broad consensus among the employer community that a general infectious disease standard is unnecessary and ill advised, in light of the existing Injury and Illness Prevention Program (IIPP) and Aerosol Transmissible Diseases standards and the inability to prescribe specific measures to address pandemics that have yet to arise.

As many may recall, the ETS was hurriedly adopted around Thanksgiving last year and then amended in June 2021 following bizarre twists and turns, with the Standards Board reconsidering proposed text and votes faced with concerns the draft amendment was not aligned with CDC guidance and was otherwise unwieldy.  Ultimately, the Standards Board formed a subcommittee to consider the future of the ETS that has met regularly since June.

Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process.  We have summarized how the draft permanent rule materially departs from the ETS: Continue reading