After seven hours of taking comments from the public, the California Occupational Safety and Health (CAL/OSHA) Standards Board voted Nov. 19 to adopt new emergency rules on COVID-19 workplace prevention measures.
The new mandates arose after labor groups in May filed a petition calling for changes, while stakeholders representing employers raised concerns with an additional regulatory approach to COVID-19 mitigation.
The standards take effect immediately, provided the Office of Administrative Law (OAL) issues its approval in the next week, a Department of Industrial Relations (DIR) news release said.
“The proposed regulations are wide-ranging, and will affect different employers differently so it is difficult to identify the ‘most important’ aspect,” Ellen Sims Langille, general counsel at the California Workers’ Compensation Institute, told the Northern California Record by email.
“Having said that, it will be important for employers to understand that a negative COVID test may not be required before an employee returns to work, even if the employee has previously tested positive. Instead, the proposed regulations require only that a certain number of days pass (depending on the symptomology). That may surprise some employers, and could lead to problems as the employer seeks to protect other employees at the jobsite.
“Secondarily, the requirement for a written COVID-19 Prevention Program, including an affirmative duty to identify and evaluate potential COVID-19 hazards, may be very difficult to achieve on an emergency basis, particularly for smaller employers,” Langille said.
The measures, which are currently temporary, will apply to most California workers not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
The requirement that employers maintain an employee’s pay, seniority and benefits when they are off work due to COVID-19 should not have a tremendous impact on most employers’ operations, Langille said.
“We note that Subsection (c)(10)(C) does not apply where the employer demonstrates that the COVID-19 exposure is not work related,” Langille said.
“Of greater concern are the several requirements for employers to provide COVID-19 testing to employees under certain circumstances,” Langille said. “The proposed regulations appear to require that the employer actually provide the testing during regular business hours, rather than require the employer to direct the employees to a local testing facility.”
The petition seeking the regulations was filed May 20 by the Labor & Employment Committee of the National Lawyers Guild and the Worksafe organization.
While Board staff submitted an Aug. 10 evaluation recommending denial of the petition, at its Sept. 17 meeting, the Board members voted to grant the petition in part, requesting Cal/OSHA draft text of the emergency temporary standards. But they delayed action on the petitioners’ other request to establish a permanent rule, instead electing to consider such a measure once California’s COVID-19 state of emergency is lifted.