I hear that the Cal/OSHA Standards Board will be presenting for public comment and future adoption a final version of the Emergency Temporary Standards (ETS) regarding the hazards related to COVID-19 on September 15, 2022. How are these new requirements going to affect my operations?
Unless the Standards Board adopts into Title 8 a regulation addressing COVID-19, all requirements contained in the ETS will fade into the twilight on December 31, 2022. After three iterations of the ETS, the emergency regulation process is no longer a viable option. The regulation must be formally adopted into Title 8.
On November 19, 2020 the Standards Board adopted sections 3205 and 3205.1-3205.4 of Title 8, the ETS, which went into effect on November 30, 2020.
What is being presented for discussion and comment next month is a massive rewrite of sections 3205 through 3205.3. Section 3205.4 has been incorporated into the other sections where appropriate. To quote from the Standards Board memo:
“The Board is proposing new sections 3205 through 3205.3 to provide clear and specific requirements to employers so that they may better protect employees from the harmful effects of COVID-19; avoid a potential increase in COVID-19-related fatalities, serious illnesses, and long-term disabilities; and reduce related financial costs to employees, employers, insurers, public benefit programs, and taxpayers. The proposed regulations will mitigate costs associated with COVID-19-related company shutdowns, employee absences, hospitalizations, death, responding to agency investigations, increased workers’ compensation insurance rates, personnel replacement expenses, and lost production.”
The following is a brief summary of some of the revisions:
• The regulation will not be permanent as there is a two-year sunset provision. (This is based on the premise that COVID-19 is now endemic.)
• Exclusion pay is gone as related to COVID-19.
• The testing and notification after exposure remains in the requirements.
• Records will be maintained for three years.
• The proposed regulation will not apply to work locations with one employee where no contact occurs; employees working from home; and employees teleworking from a location of the employee’s choice, which is not under the control of the employer.
Visit Website to Review
This is just a small portion of the proposed revisions. I would highly recommend a visit to the Standards Board website to compare the proposal with the repealed ETS. The comparison draft can be found at www.dir.ca.gov.
There are 30-plus pages, a large percentage being deleted regulations. Many of the proposals are the existing ETS regulations, some with additional amendments that are being incorporated into the proposed new regulation. Some changes, such as the definition of “close contact,” are the result of California Department of Public Health rewrites.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.