As of November 30, 2020, the new Division of Occupational Safety and Health (Cal/OSHA) 21-page COVID-19 Emergency Standard is in effect across California, covering virtually every employer and workplace in the state.
How We Got Here
Given that the text of this Emergency Regulation wasn’t made public until November 12—less than one month ago—now is a good time to recap the last 30 days and what employers can expect going forward.
In September, the Cal/OSHA Standards Board granted a petition from the National Lawyers Guild and other groups to require the Division’s staff to prepare a draft emergency regulation on COVID-19 to be voted on at the November Standards Board meeting.
In addition, the Board took the unprecedented step of voting to allow no formal stakeholder input on the text of the regulation until after the Emergency Regulation had been approved.
Instead, the Board voted on a process of convening a stakeholder meeting after the Emergency Regulation was in effect, meaning that stakeholder feedback on feasibility concerns or ambiguities could not be addressed before the regulation took effect. This was a marked departure from past Cal/OSHA procedure, under which at least one meeting of stakeholders was convened to discuss a draft of regulatory text, even for emergency regulations.
On November 12—just one week before the Standards Board vote on the regulation—the text was made public, and stakeholders on all sides scrambled to analyze the 21 pages of text.
On November 19, after nearly 10 hours of stakeholder testimony, including some from the California Chamber of Commerce (see written comments), and after a very brief discussion by Standards Board members, the Emergency Regulation was approved and sent to the Office of Adminstrative Law (OAL) for the final legal approval as to process.
Notably, Cal/OSHA staff acknowledged at the November 19 meeting that the 10-day timeline (by November 30) for employers to comply with all the regulation’s many provisions could be “no small task” and promised guidance to clarify some of the Emergency Regulation’s ambiguities.
The much-needed clarification was released on December 1, the day after the Emergency Regulation went into effect.
Emergency Regulation
The Emergency Regulation applies to virtually every workplace in California, of any size, excluding only those employees covered by the Aerosol Transmissible Disease Standard and employees who are either working from home or are truly alone during their entire shift.
In practice, that means just about everyone except for certain medical/research employees is covered.
Substantively, the Emergency Regulation brings together a wide swath of existing requirements from guidance documents and public health orders, but also adds very significant new requirements.
Given the length and complexity of the text, the CalChamber recommends that every employer in California look at the text and consult counsel. Below are some of the brief highlights:
• New Obligations Regarding COVID-19 Prevention: This includes specifying requirements for an employer’s COVID-19 Prevention Program, such as how cases must be investigated and what notice must be provided to potentially exposed employees (with some differences from the terms of this year’s AB 685).
• Review of Ventilation and Air Circulation in Workplaces: Workplaces will need to review their ventilation systems and, in some cases, upgrade them to improve filtration—but will not need to replace the existing system.
• Exclusion and Benefits: Employees who test positive for COVID-19, as well as those who are exposed to them (meaning being within a six-foot radius for 15 minutes or more, regardless of masks) must be excluded from the workplace and provided with their regular earnings for the duration of their exclusion.
• Outbreaks and Increased Obligations: The Emergency Regulation requires employers who experience an “outbreak” in their workplace (starting at three cases in a workplace in a 14-day period) to comply with new, weekly testing obligations for all employees who were at the worksite, regardless of whether they were close enough to qualify as “exposed.” Notably, to end an “outbreak,” a workplace must have two weeks with no new cases—leading to a question of how large workplaces will ever fall out of “outbreak” conditions and the related obligations.
• Employer-Provided Housing and Transport Get Specific Requirements: Beyond the obligations on most workplaces, a host of specific provisions apply to employer-provided housing and transport, raising elevated concerns for certain sectors, including agriculture. These requirements include spreading out beds by six feet and ensuring certain protocols inside of housing. In addition, employers are required to procure new housing for exposed cases to allow quarantining, which must include a “cooking and eating facility”—making hotel accommodations without cooking equipment potentially insufficient.
What Comes Next
With these sweeping new provisions fresh off the presses and going into effect presently, the question becomes: when employers and different industries discover that certain provisions are vague or unworkable, what can we do about it? When can we expect fixes from Cal/OSHA to address some of the vague or infeasible elements?
The Board voted to set a deadline of the March 2021 Standards Board meeting for Cal/OSHA to convene a stakeholder meeting and come back to the Board with potential fixes. Although Cal/OSHA is technically able to seek Board approval for changes sooner than March, that seems somewhat unlikely.
In the coming months, Cal/OSHA will need to do all the following before bringing the proposed text to the Board for the vote:
• Convene at least one stakeholder meeting (expected in early January);
• Review and systematize all the voluminous comments it will receive (likely to take weeks at least);
• Design specific amendments based on those comments; and
• Run those proposed amendments by various experts, including the California Department of Public Health and likely the Governor’s Office.
As a result, although the Board could potentially vote on amendments as soon as February, March seems more likely.
These amendments are unlikely to address all the employer community’s concerns. The changes will include only what the Cal/OSHA staff is convinced needs cleanup.
The Board also ordered Cal/OSHA to bring back another round of proposed changes after taking stakeholder input again after another four months, so there will be a second chance four months thereafter.
In short: employers need to review the COVID-19 regulation thoroughly with counsel and move to comply with its present text, but should simultaneously document their difficulties with specific provisions and prepare to raise those concerns to Cal/OSHA throughout 2021.
For a compliance-oriented overview, see the December 2 HRWatchdog blog post.
