As many of you have heard by now, the Cal/OSHA Standards Board adopted revisions to the state’s COVID-19 Emergency Temporary Standard (ETS or the Regulation) last Thursday, on June 3rd, that will go into effect on or just before the Governor’s much-discussed June 15th opening date.
But – just before doing so – the Standards Board actually rejected the very same proposal about an hour earlier, and then created a subcommittee of Board members to work on improvements, and then approved the same text they had previously rejected. The subcommittee of Board Members seemed focused on making quick changes and fixes to the ETS, but ultimately still thought the proposal was better than leaving the present text in place. So, what lessons can we draw regarding this bizarre process and what is coming for California’s businesses under the new text?
1) Watch for Changes between June 15th and July 31st
The new text of the Regulation itself (available here: https://www.dir.ca.gov/oshsb/documents/Jun032021-COVID-19-Prevention-Emergency-txtbrdconsider-Readoption.pdf) will go into effect on or just before June 15th and bring some changes to enforcement. Notably, those immediate changes include:
– New requirements to have N95 respirators on hand for employees in certain scenarios – and these requirements expand to requiring potential N95s for all unvaccinated employees on July 31st. (3205(c)(6)-(8))
– New definition of “fully vaccinated” employees (3205(a)(9)), which will influence the requirement for employers to begin collecting information on who is vaccinated in order to reach easier compliance methods (e.g., 3205(c)(6)-(8)).
– Some loosening of outdoor masking and distancing requirements.
– Loosening of disinfecting obligations, due to a better understanding of how uncommon surface transmission of COVID-19 is. (3205(c)(8)(C))
– Outbreaks will now require 3 cases among employees, not just any person at the worksite. (3205(a)(7))
– Addition of “Outdoor Mega Events” to the standard, which will have implications for concerns, parades, fairs, festivals, sporting events, and theme parks (3205(a)(11)).
– Specific exclusion of certain popular types of face coverings, such as bandanas, ski masks, and others. (3205(a)(8))
– Changes to notice requirements to include some verbal notice if an employee has “limited literacy.” (3205(c)(3)(B)(3)(a))
– Changes to training obligations, including that employers must now instruct that vaccines are “effective at preventing COVID-19, protecting against both transmission and serious illness or death.”
These new changes will require some quick FAQ’s from Cal/OSHA, which they are already working on. Chief among the issues that employers need some clarity on is the issue of “documentation of vaccination.” Specifically – How must employers ask about/verify vaccination status? What kind of records do employers need to maintain to show who was vaccinated? And, importantly, how long do they have to be maintained? Those are all urgent, “rubber-meets-the-road” questions that employers should watch for FAQs on as this new text comes online on June 15th.
2) The End of the Regulation May Be Sooner Than We Think
Cal/OSHA’s formation of a new subcommittee to focus on rapid changes to the Regulation suggests it may end sooner than it might have otherwise, due to a procedural mechanism. Technically, Cal/OSHA is only allowed two “re-adoptions” of the Emergency Regulation, before it must expire or be made permanent. Each re-adoption adds duration to the Regulation; so the re-adoption approved last week (which was the first re-adoption) means the ETS will now continue in effect until January 2022, if not ended early by Cal/OSHA. Then, a second re-adoption could hypothetically be pursued in January and extend the ETS’s duration further. Importantly, Cal/OSHA cannot amend the Regulation except by using one of these re-adoptions.
However, if this subcommittee of the Standards Board wants to make substantive changes (and make them soon), it could only do so by consuming the second (and final) re-adoption. That means, if the subcommittee works on a draft of changes, and those changes come before the Board sooner than January (for example, August), then we would know when the last potential expiration date of the Regulation will be. Because each re-adoption lasts 210 days, an August re-adoption would mean the ETS would be set to expire in March of 2022. And though that certainly isn’t soon, it sure is a lot sooner than the ETS’s maximum possible duration – January plus seven months (August 2022).