Cal/OSHA Introduces Proposed Amendments to its COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, May 7th, Cal/OSHA finalized and published a proposed amended version of its COVID-19 Emergency Temporary Standard (the “ETS”), which the Cal/OSH Standards Board will consider for readoption at the Board’s upcoming May 20, 2021 meeting.  The revised sections of the ETS include a series of changes sought by the regulated community, and quite a few that our

Cal/OSHA’s Proposed Amended COVID-19 Emergency Temporary Standard Sent to the Standards Board

California Employers COVID-19 Prevention Coalition specifically advocated for, but the rule is still a bear.

It bears emphasizing that the proposed updated ETS is coming more than five months after the Board unanimously adopted the ETS, and during that span, Cal/OSHA has been busy considering potential changes, due in large part to the lack of opportunity by the regulated community to consider and comment in the rush to issue the emergency regulation back in November.  Indeed, when the ETS was first adopted, the regulated community struggled to understand and implement the regulation.  And while Cal/OSHA issued numerous FAQs in January, February and March, many questions remained unanswered.

In February, the Division convened an Advisory Committee about the ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS.  As you know, Conn Maciel Carey, on behalf of the California Employers COVID-19 Prevention Coalition (the “Coalition”), participated in the three-day (February 11, 12 and 16) Advisory Committee meetings.  On March 2, the Coalition submitted written comments to the Chief of the Division addressing a variety of concerns and suggesting, among other recommendations, that the Division:

  • Clarify the scope of the ETS;
  • Clarify various requirements under the ETS to be consistent with guidance the Division has provided in its FAQs;
  • Create more flexibility in the standard to account for the vastly different operations covered by the ETS;
  • Address the evolving science and public health guidance on COVID-19 and the vaccines; and
  • Clarify and align notice requirements under the ETS with other California requirements.

The good news is, the agency Continue reading

Vaccinated Workers Are Not Required to Quarantine Under Cal/OSHA’s COVID-19 ETS, But Masks and Distancing Are Still Required

By Conn Maciel Carey’s COVID-19 Task Force

The California Department of Public Health (CDPH) issued new guidance yesterday – COVID-19 Public Health Recommendations for Fully Vaccinated People – that affects some aspects of Cal/OSHA’s COVID-19 ETS.  For purposes of this discussion, people are considered fully vaccinated for COVID-19 either two weeks or more after they receive the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks of more after they received a single-dose vaccine (Johnson and Johnson/Janssen).

CDPH Vaccination GuidanceRelevant to application of Cal/OSHA’s COVID-19 ETS requirements to fully vaccinated workers, the new CDPH guidance provides that in a workplace setting, fully vaccinated workers are no longer required to quarantine following a known exposure at work, so long as the exposed vaccinated worker remains asymptomatic.  But that is as far as the guidance goes in providing relief under Cal/OSHA’s COVID-19 ETS for vaccinated workers.

Specifically, employers must still follow all other requirements of the ETS with respect to fully vaccinated workers.  Regardless of vaccination status, an exposed fully vaccinated worker or a fully vaccinated worker who is part of a group of workers covered by an outbreak determination must still Continue reading

Fed OSHA’s COVID-19 Emergency Temporary Standards Officially Submitted to OMB for Final Approval

By Conn Maciel Carey’s COVID-19 Task Force

We have officially entered the phase of Federal OSHA’s emergency rulemaking when things are going to start to move very quickly.  After hitting the “refresh” button more times over the last month than we would like to admit, today we finally saw what we have been expecting since mid-March – Federal OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) has been submitted to the White House’s Office of Management and Budget (“OMB”) for approval:

The entry for the ETS on OMB’s website confirms that OMB:

  • Has received a proposed COVID-19 rule from OSHA;
  • The rule is in the “Final Rule” stage;
  • The rule is characterized as “Economically Significant”; and
  • Regulatory text is not available to be reviewed by the public.

The Department of Labor issued this press statement confirming that the rule was sent to OMB:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

Of particular note in this press statement is DOL’s use of Continue reading

OSHA Takes A Big Step Towards Issuing a COVID-19 Emergency Temporary Standard

By Conn Maciel Carey’s COVID-19 Task Force

As we continue our marathon COVID-19 ETS watch, some news today made the future of OSHA’s emergency rulemaking more clear.  OSHA has officially delivered a proposed COVID-19 emergency temporary standard to the White House’s Office of Management Budget today, Monday, April 26th.  Although the OMB website is still not showing a record of the rule, the Department of Labor issued this statement:

“Today, OSHA sent draft standards to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review.  OSHA has been working diligently on its proposal and has taken the appropriate time to work with its science-agency partners, economic agencies, and others in the U.S. government to get this proposed emergency standard right.”

We had circled this Wednesday, April 28th, on our calendar as the likely day OSHA would officially announce it was going to issue an ETS because that is Workers Memorial Day, and that seemed to be a good symbolic occasion to announce a rule designed to address a pandemic that has claimed so many lives.  Here’s a link to the Dept. of Labor’s Virtual Workers Memorial Day event, and here’s how the event is billed: Continue reading

COVID-19 OSHA Enforcement and Regulatory Update [Webinar Recording]

On  April 20, 2021, Aaron GelbAmanda Strainis-Walker and Dan Deacon presented a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants learned about: Continue reading

[Webinar] COVID-19 OSHA Enforcement and Regulatory Update

On Tuesday, April 20, 2021 at 1:00 P.M. ET, join Aaron Gelb, Amanda Strainis-Walker and Dan Deacon for a webinar regarding a “COVID-19 OSHA Enforcement and Regulatory Update”.

Since the 2020 presidential election was decided, employers have waited, wondered, and watched for signs to see how President Biden’s OSHA would regulate and enforce COVID-19 safety in the workplace. Although OSHA missed the March 15 deadline set by President Biden in his Day One Executive Order to issue its COVID-19 Emergency Temporary Standard (ETS), there have been several important developments providing a window into how OSHA will approach COVID-19 enforcement, most notably the agency’s launch of a COVID-19 National Emphasis Program (“COVID-19 NEP”) to focus the agency’s enforcement efforts on “companies that put the largest number of workers at serious risk of contracting the virus,” as well as prioritizing employers that “retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.” OSHA also updated its Interim Enforcement Response Plan, which details how OSHA’s field staff should conduct COVID-related inspections, including whether they will resume in person inspections or continue conducting them remotely as has been the norm for the past year.

During this webinar, participants will learn about: Continue reading