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.
On May 19, Oregon OSHA issued a Statement Regarding Vaccination Status in Relation to Oregon’s Facial Covering and Social Distancing Requirements in which it advises that employers may discontinue enforcing face covering and physical distancing requirements as to employees and/or visitors (which apparently includes customers) only if the employer verifies the vaccination status of any such individuals attempting to enter without a face covering. Notably, Oregon OSHA further advises that the employer must enforce the physical distancing and facial covering requirements without regard to the exemption with respect to anyone who refuses to provide verification of their vaccination status. Over the past year, many retailers struggled to craft a workable policy that complied with the intent of Oregon OSHA’s expectation that they deny entry/refuse service to customers who refuse to wear a mask. As we discussed in prior blog posts, placing front line retail workers in such a position was not only infeasible, but it put them at greater risk of harm by customers who reacted in a violent manner when asked to wear a face covering. It remains to be seen, however, whether Oregon OSHA will adopt a rational approach respect to vaccination status verification requirements for retailers and other employers with public-facing operations.
Notably, Oregon OSHA’s Statement references the Oregon Health Authority’s May 18 Interim Guidance for Vaccinated Individuals, which includes retailers in the definition of a covered business; it does not, however define visitor. We nonetheless read the OHA’s Interim Guidance and the OR OSHA Statement together to treat customers/shoppers as visitors. According to the OR Health Authority, a business must continue to enforce the physical distancing and face covering requirements unless it: Continue reading →
This year’s annual Cal/OSHA update covered the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We also alerted you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.
This year’s annual Cal/OSHA update will cover the latest legislative, regulatory and enforcement developments concerning COVID-19, including the Emergency COVID-19 Prevention Rule. We will also alert you to new regulatory changes concerning the Wildfire Smoke rule, various proposed rules being considered by Cal/OSH Standards Board, and general DOSH enforcement trends.
Governor Newsom has announced his proposed budget for 2020-2021 and it has some good news and some bad for Cal/OSHA. Under the Governor’s proposal, Cal/OSHA’s overall budget will increase by $12,107,000, or just over 8% to $168,661,000.
This will be split between the three arms of Cal/OSHA. The budget for the Standards Board, which adopts regulations, is slated to increase to $3,946,000. The Appeals Board, which hears appeals of citations, is expected to get $6,706,000. But the Division of Occupational Safety and Health (DOSH) is by far the elephant in the room. Its current budget of $146,743,000 is 24 times that of the Appeals Board and 41 times that of the Standards Board. Its budget for 2021 will be $158,009,000.
The largest piece of the DOSH pie (33%) will go to the Elevator Unit. Consultation, PSM, and the Pressure Vessel Unit each will receive an 8% increase while Mining and Tunneling will get 9%.
As previously discussed on the OSHA Defense Report blog, on April 10, 2020, Federal OSHA issued enforcement guidance for recording cases of COVID-19, relaxing recordkeeping enforcement for employers other than those in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions. Unfortunately, the guidance does not mandate that State Plan States follow suit, and not all states with approve OSH Programs have announced whether they will be following Fed OSHA’s guidance.
The state of Washington has not published any guidance on that issue one way or the other. But here is what we have learned from the Washington Department of Labor and Industries (“DLI”) Division of Occupational Safety and Health (“DOSH”).
As a threshold matter, as we know from Fed OSHA recordkeeping, among other requirements, for an injury or illness to be recordable, it must be “work-related.” The language of Washington DLI’s recordkeeping regulation regarding assessing work-relatedness mirrors the Fed OSHA regulation. They both state that an employer:
“must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.”
Work-relatedness is presumed for injuries and illnesses resulting from events or exposures that occur in the work environment, unless an enumerated exception applies, and the work-relatedness exceptions for Fed OSHA and Washington are also the same.
Effective April 1, 2017, a new California Occupational Safety and Health Standards Board (“Standards Board”) regulation at Title 8, Section 3342 requires certain employers in the health care industry to develop and implement a Workplace Violence Prevention Plan. The passage of these regulations came after nearly two years of meeting and work within the Agency, and more than two years after the California legislature passed Senate Bill 1299, which instructed the Standards Board to implement these workplace violence regulations.
Rules Apply to Health Care Facilities
Senate Bill 1299 only directed the Standards Board to adopt regulations requiring licensed hospitals to adopt violence prevention plans to protect health care workers and other facility personnel from aggressive and violent behavior. The regulations that were adopted by the Standards Board, however, apply not just to licensed hospitals, but more broadly to any “health facility,” defined as:
“any facility, place or building that is organized, maintained, and operated for diagnosis, care, prevention or treatment of human illness, physical or mental…to which  persons are admitted for a 24-hour stay or longer.”
Additionally, the regulations apply to the following facilities regardless of their size or how long a patient stays there:
Home health care and home-based hospice;
Emergency medical services and medical transport, including services provided by firefighters and other emergency responders;
Drug treatment programs;
Outpatient medical services to the incarcerated in correctional and detention settings.
Immediate Requirement to Begin Reporting Violent Incidents
Beginning April 1, 2017, every general acute care hospital, acute psychiatric hospital and special hospital generally must report to the Division of Occupational Safety and Health (DOSH) any incident involving Continue reading →