It has been nearly a full month since the deadline set by President Biden’s Day-1 OSHA Executive Order for Federal OSHA to determine the necessity of and to issue a COVID-19 Emergency Temporary Standard (ETS), and we are all still waiting for the big news. OSHA has not issued a final ETS. The Office of Management and Budget’s (OMB) website has not been updated to reflect that it has received a proposed ETS from OSHA. OSHA has not even explicitly announced that it will issue a COVID-19 ETS.
According to reports last week from Bloomberg Law, brand new Secretary of Labor Marty Walsh requested a hold on the release of an OSHA ETS, but according to a DOL spokesperson, that “hold” was so that OSHA could make “a rapid update based on the Centers for Disease Control and Prevention analysis and the latest information regarding the state of vaccinations and the variants.” The sense from that reporting was that OSHA would be quickly updating certain provisions in a near-final draft of the ETS to align with the latest CDC guidance. No suggestion that an ETS would not be issued.
However, later in the week, Politico reports that Secretary Walsh gave a public interview in which he said this:
That was the first time since President Biden’s Executive Order that we heard anyone at OSHA or the Department of Labor imply that a COVID-19 ETS may not happen, and it conflicts directly with Continue reading →
Here are five notable OSHA and Cal/OSHA COVID-19 recordkeeping updates that we wanted to share with you:
1. Congressional Intervention About Cal/OSHA’s COVID-19 Recordkeeping FAQs
As we explained last year, Cal/OSHA’s May 27th COVID-19 Recordkeeping FAQs departed from Fed OSHA’s COVID-19 recordkeeping requirements in two key ways: (i) rejecting Fed OSHA’s recordability precondition of a positive COVID test; and (ii) flipping the burden of establishing work-relatedness on its head, setting instead a presumption of work-relatedness 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 non-work related illnesses being recorded on California employers’ 300 Logs, Cal/OSHA is not legally permitted to deviate from Fed OSHA’s recordkeeping requirements.