As the legislative cycle reaches its peak frenzy and the fate of 2022’s crop of bills is decided, the regulatory world at Cal/OSHA is taking a major step forward on COVID-19.
The Cal/OSHA Standards Board has released the draft text to extend the state’s COVID-19 regulation for another two years – with some significant changes from the present COVID-19 regulation – as part of their September 15, 2022 meeting. Most notably, the draft text adds flexibility to the regulation and ends the requirement of exclusion pay.
To quickly refresh you on where we stand: the COVID-19 emergency regulation was first put into place in the fall of 2020 and has been repeatedly extended (including via the unusual step of an Executive Order [N-23-21]), but it will expire on December 31, 2022. Notably, the regulation has evolved considerably over that time (more detail on that below and here at Cal/OSHA’s website: https://www.dir.ca.gov/oshsb/COVID-19-Prevention-Emergency.html) – but its provisions will expire at the end of this year unless Cal/OSHA votes to turn the emergency regulation into a “permanent” regulation before the end of this year.
With that background in mind – stakeholders can now review the exact text which Cal/OSHA will be voting upon to potentially extend the COVID-19 regulation. You may be wondering – “Rob, how do we know there won’t be more changes before the Standards Board vote?” Good question! The basic answer is: it would take too long to make changes (and run those changes by CDPH, the Governor, and comply with regulatory requirements of SRIA, etc.) and still hold the vote this year . . . and Cal/OSHA has made very clear its goal of holding the vote this year.
A few key points on the proposed text:
– The proposal continues to require that employers provide testing and notice after exposure (as they are doing presently).
– The proposal contains a 2-year sunset, so the regulation would not be truly permanent (this is consistent with the overall recognition that COVID-19 is now an endemic disease, so emergency-level notice provisions may not be appropriate on a permanent basis).
– The proposal allows somewhat more flexibility than the present regulation (likely in recognition of the need to allow flexibility when science may change over the next two years).
– The proposal ends the repeatedly extended requirement of exclusion pay, which had burdened employers with paying for even non-workplace cases, and confused and frustrated employment law attorneys because of its vagueness.
Comments are due by the September 15, 2022, Standards Board Meeting – so any stakeholders who thought they could hang up their hats for a few weeks after the legislature completes its work on August 31st … well, you may need to add one more thing to your to do list.