As Cal/OSHA prepares a potential two-year COVID-19 standard to replace the current Emergency Temporary Standards (ETS), stakeholders are encouraged to provide input on terms and execution for the new regulations and the impact on worksites across the state.
Interested parties participated in an advisory committee call late last month that was streamed online, and should have many opportunities for input between now and next March, including (at a minimum) a 45-day comment period before the final vote, Robert Moutrie, policy advocate with the California Chamber of Commerce, told the Northern California Record.
Cal/OSHA’s release of the draft permanent standard signals the agency’s longer-term workplace enforcement of COVID-19 prevention measures.
“Cal/OSHA deals in two types of regulations – permanent and emergency standards,” Moutrie said. “So, the draft is a called a ‘permanent’ standard because it is not an emergency standard. Of course, the draft version suggests a time-limited regulation with a two-year duration, but it falls into the category of ‘permanent’.
The two-year sunset is being considered in view of what’s expected to be a decrease in coronavirus cases.
“I believe Cal/OSHA realized that a COVID-19 standard needs to have some flexibility or sunset date because we all expect the worst of COVID-19 to be over soon,” Moutrie said. “And data in California bears that out – vaccination and masking have led us to have far fewer cases than last winter, despite being largely open and school re-commencing.”
Moutrie noted that late last month, a panel of researchers advising the CDC shared their findings that they expect COVID cases (nationwide) to drop significantly by March, and even further subsequently.
Frank Polizzi, public information officer for the California Department of Industrial Relations, which administers Cal/OSHA, told the Record by email that the permanent standard could take effect April 14, 2022.
The issue of exclusion pay, a requirement for employees who must quarantine, is not part of the draft permanent standard.
“Exclusion pay will be left for the Legislature to address Cal/OSHA’s authority. In the draft, employees must be given information about any available benefits,” Polizzi said.
Meanwhile, the recent passage of SB 606 grants Cal/OSHA greater enforcement, including an enterprise-wide presumption of violations.
“The way SB 606 and ETS interact is not that 606 will substantively change the ETS, but it encourages Cal/OSHA enforcement and raises those citation amounts,” Moutrie said. “The additional fines that SB 606 creates are yet another reason for employers to keep a close eye on the emergency regulation and on the potential permanent regulation, and make sure they stay up to date.”
California’s potential permanent regulation next spring will also need to align with what is decided by the Biden administration and OSHA at the federal level.
The current draft for California’s permanent standard does not include vaccine requirements.
“There’s a big question hanging of what will the Biden administration require, when the federal OSHA regulation related to vaccines gets released,” Moutrie said. “If it requires vaccine verification to be done a certain way, then California regulations are going to have to find a way to conform to that.”