Cal/OSHA Delays Vote on COVID-19 Emergency Rule Amendments

Employers will have to wait a little longer to know what is coming for California’s COVID-19 workplace emergency temporary standard (ETS).

The California Division of Occupational Safety and Health (Cal/OSHA) Standards Board was scheduled to vote on a new proposed text for the ETS on May 20. However, agency staff requested that the Board not vote on the amendments in order to give the Division an opportunity to make it more consistent with recent Centers for Disease Control and Prevention (CDC) guidance.

For context — on May 13, just one week before the Board was set to vote — the CDC updated its guidance to allow fully vaccinated persons to go without masks in some settings.

Next, California Health and Human Services Agency Secretary Dr. Mark Ghaly announced on May 17 that “California plans to implement the CDC’s guidelines around masking to allow fully vaccinated Californians to go without a mask in most indoor settings” starting June 15.

Pointing to these recent developments, Cal/OSHA stated that “it is important to revisit the proposed COVID-19 prevention emergency regulations in light of this new guidance.” And added that “The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”

Next Steps

Although the Cal/OSHA Standards Board intends to vote on a new text at the June 3 emergency meeting, the text that will be voted upon remained unpublished as this newsletter was being finalized. Assuming it is approved, it will go into effect statewide before June 15, so employers need to be looking to get ahead of compliance issues as soon as possible.

The California Chamber of Commerce expects that the revised text will likely include all of the major features of the May 20 draft text that was to be considered at the Standards Board meeting, but with minimal changes to the face mask requirements.

This means that California employers should stay focused on the May 20 text while keeping an eye open for small changes in the new text, which is expected to be released in the coming week.

Chief among the issues in the May 20 text (which the CalChamber expects will persist in the upcoming revised text), employers should watch for:

• Lightened compliance requirements in some sections based on employee vaccination (which will require ambiguous “documentation” of vaccinated status);

• New requirements to provide N95 respirators to unvaccinated workers in limited settings pre-July 31, and to all unvaccinated indoor employees after July 31;

• Changes to testing and training obligations; and

• Slight loosening of disinfection and cleaning obligations to reflect new science regarding the rarity of surface-based transmission.

These concerns (and others) were all raised in the CalChamber’s coalition comment letter, which was submitted to the Standards Board for the May 20 meeting, and is available here.

Looking Down the Road

So, what can employers expect after the June 3 vote? Employers should be clear on one thing: the emergency regulation will not sunset on June 15. Workplace obligations won’t end just because the Governor has opened up the state socially.

To the contrary, the emergency regulation will continue in effect until Cal/OSHA’s Standard Board ends it, or the emergency regulation expires (which won’t take place until early 2022 if the Board passes these amendments on June 3).

Substantively, employers should keep their eyes on July 31. That’s because the May 20 text of the emergency regulation included a July 31 threshold date for workplace precautions which is the critical date employers will want to watch. This July 31 date is not an expiration date for the entire regulation; instead, certain provisions will change in their application, but not end completely.

For example, although social distancing requirements will diminish, new requirements to provide N95 respirators will take their place — so employers will need to read closely and plan their compliance with the long term in mind.

Although the June 3 text has not yet been released, the CalChamber expects this July 31 transition date will likely be maintained in the June 3 text, so employers should prepare to comply.

In the near term, we also expect Cal/OSHA to release FAQs around certain notable ambiguities in the emergency regulation, including the most hot-button issue: exactly how will employers be required to document the vaccination status of their employees?

N95 Respirator & Recordkeeping Concerns

Of particular concern is the requirement that employers stockpile and make available N95 respirators for unvaccinated, indoor workers starting on July 31. The CalChamber estimates that around 2 million workers may be in this category by the end of July.

This change is problematic from both public health and feasibility standpoints. As California employers will need to purchase a significant number of N95 respirators for the duration of the regulation, we have grave concerns that virtually every business in the state will be in competition with health care professionals (both in California and abroad) for that supply.

This competition makes even less sense when you consider that the emergency regulation does not require fit testing or shaving of beards — because such would be infeasible — so employees will likely not have the tight seal necessary for N95’s to work correctly.

In short: indoor, unvaccinated employees will be taking N95’s from healthcare, and not getting the full benefit the N95 would provide to properly trained healthcare or first responders. All of this raises the question: why not stick with face masks and save the N95 masks for medical professionals and industries where they are needed?

Another primary concern is the proposed requirement that employers maintain records containing their employees’ vaccine status. This can be problematic for employers because California requires such employee health records to be kept for the duration of employment plus 30 years. Maintaining those records for that long, and in a way that protects privacy, is a concern for many employers, and especially small employers.

More Information

For more information on the proposed changes to the ETS, see the Capitol Insider article “New COVID-19 Emergency Regulation Amendments Coming from Cal/OSHA.

Staff Contact: Robert Moutrie

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Robert Moutrie joined the CalChamber in March 2019 as a policy advocate. He leads CalChamber advocacy on occupational safety, tourism, insurance, unemployment insurance, immigration and education. He is CalChamber's expert on the COVID-19 workplace regulation and was closely involved in its drafting and amendments process at Cal/OSHA. Moutrie has represented clients on matters such as consumer fraud litigation, civil rights, employment law claims, tort claims, and other business-related issues in federal and state courts. He previously served as an associate attorney at the Oakland-based firm of Meyers, Nave, Riback, Silver & Wilson. Moutrie earned a B.A. in political science from the University of California, Berkeley, and a J.D. with honors from the University of California, Hastings College of the Law. See full bio.