As businesses seek to integrate the new Cal/OSHA emergency temporary standards (ETS) into workplace protocols, concerns persist about when enforcement and penalties will be assessed.
A recent letter noted the new standards were put into effect with little opportunity for stakeholder input.
“Cal/OSHA currently is not delaying enforcement of the COVID-19 emergency temporary standards (ETS); however, they are currently taking a lighter enforcement position,” attorney Matthew J. Roberts, CalChamber employment law counsel subject matter expert told the Northern California Record by email. “Cal/OSHA will review an employer’s good faith efforts to comply with the ETS as a mitigating factor during enforcement.”
“Also, while Cal/OSHA will issue citations now, Cal/OSHA will not assess monetary penalties for citations issued through Feb. 1 if the citation is for a violation of a provision of the ETS that was not required of employers through their Injury and Illness Prevention Program, respiratory protection program, or other applicable Cal/OSHA standard that was already in place before the ETS took effect on Nov. 30,” Roberts said.
At least two lawsuits challenging the new standards have been filed, both of which cite the Cal/OSHA staff recommendation to deny the petition for the ETS.
Both suits allege the ETS were passed in violation of the California Administrative Procedure Act, which requires proposing regulations and taking public input before imposing new mandates on business.
Cal/OSHA has declined to comment on the litigation.
The ETS apply to businesses in the state not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
“Most importantly, the ETS are effective and enforceable now and employers should immediately move towards compliance,” Roberts said. “It is also important to know that Cal/OSHA provides guidance and resources for employers to follow the ETS including providing a model COVID-19 Prevention Plan as required by the ETS and employers should review these resources as they work towards compliance.”